HomeMy WebLinkAbout0545 SCUDDER AVENUE (6) y
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COMMONWEALTH OF MASSACHUSETTS
SUFFOLK, SS. SUPEjry OfiJ1�COjJRF1 3' 21
CIVIL ACTION NO. 07-05366
SAFETY INSURANCE COMPANY ) r DIVISION
Plaintiff
CO ST JUL 2008
VS. )
JEFFREY D. CANNON and RICHARD K. )
CANNON d/b/a A & B CANCO )
Defendants
SUBPOENA DUCESTECUM
TO: Keeper of Records
Town of Barnstable Building Division
200 Main Street
Hyannis, MA 02601
GREETINGS: YOU ARE HEREBY COMMANDED in the name of the Commonwealth of
Massachusetts in accordance with the provisions of Rule 30 and°Rule 45 of the Massachusetts Rules of
Civil Procedure to appear and testify on behalf of the Keeper of Records for the Town of Barnstable
Building Division, before a Notary Public of the Commonwealth, at the office of Attorneys O'Keefe and
Gale, 180 West Central Street, in the,city of Natick, MA on Monday, August 4, 2008 at 11:00 a.m. and
to testify as to your knowledge at the taking of the deposition in the above entitled action}
The deponent is requested to testify and bring to the deposition all of the items referred to on
the attached Schedule A.
PLEASE NOTE: Your appearance for the deposition will not be required if the requested records,
are(1) provided prior to the deposition -and,.(2) a companic.d bv.an executed certification attesting to the
accuracy and completeness of the records produced. �.
If documents are produced in this fashion, kindly return a copy of this subpoena with your cover
letter, executed certification, and documents produced to Thomas C. O'Keefe, I1I, Esquire at O'Keefe &
Gale. If you have no records, kindly write to Attorney O'Keefe confirming same.
Hereof fail not;as you will answer your default under the pains and penalties in the law in that
behalf made and provided. .
For the Plaintiff
Safety Insurance Company
By Its Attorneys:
Thomas C. O'Keefe, III, Esq.
O'Keefe & Gale
180 West Central Street
Natick, MA 01760
(508) 655-0000
BBO# 378185
COMMONWEALTH OF MASSACHUSETTS
SUFFOLK, SS
On this 5 day off 2008,before me,the undersigned notary
public, personally appeared l—ko/nA& 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 documents, in my presence.
Notary Public/audia A. Greene
My commission expires: 61
p
r -
r COMMONWEALTH OF MASSACHUSETTS
SUFFOLK, SS. SUPERIOR COURT
CIVIL ACTION NO. 07-05366
SAFETY INSURANCE COMPANY )
Plaintiff )
VS. )
JEFFREY D. CANNON and RICHARD K. )
CANNON d/b/a A & B CANCO )
Defendants )
NOTICE OF TAKING DEPOSITION
TO: Keeper of Records
Town of Barnstable Building Division
200 Main Street
Hyannis,MA 02601
Please take notice that on Monday, August 4, 2008 at 11:00 p.m. at the Law Offices of O'Keefe
and Gale, 180 West Central Street, Natick, MA 01760 the Plaintiff in this action, Safety Insurance
Company, by its attorneys, will take the deposition upon oral examination of the Keeper of Records for
the Town of Barnstable Building Division pursuant to the applicable provisions of Mass. R. Civ. P.
30(b)(6) and before a Notary Public in and for the Commonwealth of Massachusetts, or before some other
officer authorized by law to administer oaths. The deponent has been requested to testify and bring to
the deposition all of the items referred to on the attached Schedule A.
The oral examination will continue from date to date until completed. You are invited to attend
and cross-examine.
For Plaintiff
Certificate of Service Safety Insurance Company
By its attorne s:
I hereby certify that on this day a true
copy of the within document was served
upon the attorney of record for each party Thomas C. O'Keefe, III, Esq.
by mail O'Keefe & Gale
180 West Central Street
Natick., MA 01760
(508) 655-0000
BBO# 378185
SCHEDULE A
YOU ARE HEREBY COMMANDED to produce the following:
Any/all documents in connection with School House Condominiums, 537-549 Scudder
Avenue, Hyannis, MA including but not limited to plans, permits, designs, correspondence and
inspection certificates in connection herewith.
REGULATORY AGREEMENT AND
DECLARATION OF RESTRICTIVE COVENANTS
THIS REGULATORY AGREEMENT and DECLARATION OF RESTRICTIVE
COVENANTS is made this day of August, 2002, by and between
Chatham Real Properties, Inc. of 297 North Street, Hyannis, MA 02601 and
its successors and assigns (hereinafter the "Developer"), Cape Cod Bank
and Trust Co. of 24 Workshop Road, P.O Box 1180, South Yarmouth, MA
02663 (the "Bank"), and the Town of Barnstable, 367 Main Street, Hyannis,
MA 02601 (the "Municipality").
WHEREAS, the Developer intends to construct a housing development
known as `School House Pond Condominiums' on a 2.25-Acre parcel, of
which 1.3 acres are considered upland, located at 537, 543 & 549 Scudder
Avenue, more particularly described in Exhibit A attached hereto and made a
part hereof (the "Project"); and,
WHEREAS, the Developer has been granted a Comprehensive Permit under
Massachusetts General Law Chapter 40B and local regulations by the
Barnstable Zoning Board of Appeals to construct eight (8) units, two of which
are to be sold to the Barnstable Housing Authority and rented to Low and
Moderate Income Families or in the event that the Barnstable Housing
Authority chooses not to purchase said units or decides to sell them in the
future, said units shall be sold to Low and Moderate Income Families; which
permit is recorded at the Registry of Deeds in Book , Page
and,
WHEREAS, the Comprehensive Permit has specified that two (2) units, or
25% of the total units in the Project, will be affordable to households earning
no more than eighty percent (80%) of the median income, by household
size, for the Barnstable-Yarmouth Metropolitan Statistical Area (the "Base
Income") as published from time-to-time by the United States Department of
Housing and Urban Development ("HUD"), and that those affordable units
will remain affordable in perpetuity (the "Affordable Units" or the "Units");
and,
WHEREAS, pursuant to the requirements of the Comprehensive Permit, the
Developer has obtained construction financing from the Cape Cod Bank and
Trust Company (the "Member") through the Federal Home Loan Bank of
Boston's New England Fund ("NEF"), the NEF requires that the Project
provide the number of Affordable Units described above; and the Developer
has agreed to comply with the requirements of the Town of Barnstable
Guidelines for Developments financed by NEF (the "Guidelines");.and,
WHEREAS, pursuant to the Guidelines for Comprehensive Permit projects,
the Comprehensive Permit and the Regulatory Agreement, the Developer
12001-00601school regulatory agrement31 1
may not receive profit in excess of 20% of the total development costs (net
of related party expenses) of the Project (the "Limited Dividend
Requirement"); and,
WHEREAS, pursuant to requirements of the Comprehensive Permit and this
Agreement, the Developer has agreed to retain the Barnstable Housing
Authority as the "Monitoring Agent" to perform monitoring and enforcement
services regarding compliance of the Project with the Affordability
Requirement and compliance of the Developer with the Limited Dividend .
Requirement.
NOW THEREFORE, in mutual consideration of the agreements and
covenants contained herein, and other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, the parties agree
as follows:
I. PROJECT SCOPE AND DESIGN.
A. The Project, presently known as `School House Pond Condominiums'
located in Hyannisport, MA, will consist of eight (8) units, two (2) of which
shall be Affordable Units.
B. The Developer agrees to construct the Project in accordance with
Plans and Specification approved by the Barnstable Zoning Board of
Appeals, with each unit containing two bedrooms. In addition, the exterior
finishing of the Affordable Units, including walls, windows and doors, shall be
identical in all respects to the exterior of the market rate units. The interior
finishing for the affordable units shall have new color-matched appliances of
Whirlpool or better, coordinated bathroom and kitchen fixtures of American
Standard or better, finish painted walls and woodwork, and finished floors.
Any amenity (cable television, alarm system, etc.) that is paid from
association funds shall be included within the Affordable Units. Each of the
two (2) Affordable Units shall each be granted the use of one (1) parking
space in the Garage Buildings and this shall be included in the Unit Deed.
C. The Project must be in full compliance with the State Building Code
and with all applicable state and federal building, environmental, health,
safety and other laws, rules and regulations, including, without limitation, all
applicable federal and state laws, rules and regulations relating to the
operation of adaptable and accessible housing for the handicapped. Except
to the extent that the Project is specifically exempted from such compliance
by the Comprehensive Permit, the Project must also comply with all
applicable local codes, ordinances, and by-laws.
D. The Developer shall offer to sell to the Barnstable Housing Authority
the two affordable units at the price of $105,000, for each single unit. In the
event that the Barnstable Housing Authority purchases said units, they shall
(2001.00601school regulatory agrement3) 2
be rented to households with a maximum income of 80% of Area Median
Income (as defined by HUD), and that rent (including utilities) shall not
exceed the rents established by the Department of Housing and Urban
Development (HUD) (or any successor agency) for a household whose
income is 80% of the median income of Barnstable-Yarmouth Metropolitan
Statistical Area. In the.event that utilities are separately metered, the utility
allowance established by the Barnstable Housing Authority shall be
deducted from HUD's rent level, in accordance with the Comprehensive
Permit and the Guidelines, eligible low and moderate income renters. In the
event that the Barnstable Housing Authority chooses not to purchase said
Affordable Units or should the Barnstable Housing Authority, in the future,
decide to sell said Affordable Units, said units must be affordable to and sold
to households with a maximum income of 80% of Area Median Income (as
defined by HUD), in accordance with the Comprehensive Permit and the
Guidelines, to an Eligible Purchaser. An Eligible Purchaser is a purchaser
who satisfies the criteria set forth in the Guidelines, as they now exist and
may be amended the future.
E. Initial common condominium charges for the affordable units shall be
based on Basic Common Costs, which will include only those items of cost
typical to 100% affordable developments. The Town of Barnstable is to
review budget for initial Basic Common Costs and may disapprove ineligible
items or unreasonable amounts. The common charges shall be allocated to
the affordable units on the basis of sales prices, and among the affordable
units on the basis of unit square footage. Charges for parking and garage
spaces shall also be allocated to the affordable units on the basis of sales
prices and among the affordable units on the basis of square footage.
Increases in common charges to affordable units will be limited to
documented increases in Basic Common Costs, approved by the Town.
Owners of affordable units will have full access to all services and amenities
provided to owners of market units, without discrimination. Any fees charged
for the use of community amenities, such as meeting rooms and recreation
facilities, other than nominal fees, shall be reduced for owners of affordable
units by the same proportion that their common-charges are less than
common charges for market units. No provisions of the condominium
documents relating to the subject property which are in any way contrary to
or inconsistent with the provisions of the Comprehensive Permit issued by
the Barnstable Zoning Board of Appeals or this Regulatory Agreement and
Declaration of Restrictive Covenants by and between the Declarant and the
Town of Barnstable, shall be of any force or effect.
F. The Monitoring Agent shall be entitled to a fee of three (3%) percent
of the established maximum sales price of the unit to the Municipality or an
eligible purchaser for the services performed according to the Monitoring.
Services Agreement (and,referenced in the Regulatory Agreement). This fee
shall initially be paid by the Developer and thereafter, with regard to resales,
[2001-00601school regulatory agrement3l 3
said monitoring fee shall be paid by the Grantee as a closing cost at the time
of closing.
II. RESALE RESTRICTIONS and COVENANTS OF PARTIES.
A. Deed Rider.
1. The Deed Rider and any affordability criteria in this Agreement are
covenants which run with the land in perpetuity.
2. If the Barnstable Housing Authority elects to purchase the two
Affordable Units from the Developer, as a condition of the sale, the
Developer and the Barnstable Housing Authority shall execute a Deed Rider
in the form of 'Exhibit C' as attached hereto and made a part of this
Agreement. This Deed Rider shall be made a part of the deed from the
Developer to the Unit Purchaser.
3. In the event that the Barnstable Housing Authority chooses not to
purchase said Affordable Units or decides to sell them in the future, said
Affordable Units shall be sold to an Eligible Purchaser, and as a condition of
the sale, the Affordable Unit Seller and the Affordable Unit Purchaser shall
execute a Deed Rider in the form of 'Exhibit C' attached hereto and made a
part of this Agreement. This Deed Rider shall be made a part of the deed
from the Affordable Unit,Owner to the Unit Purchaser.
4. The Deed Rider shall require that at the time of the initial resale and
at all subsequent resales, a similar Deed Rider satisfactory in form and
substance to the Municipality shall be executed and attached and made part
of the Deed from the Affordable Unit owner to the Eligible Purchaser, so that
the affordability of the Unit will be preserved in perpetuity.
5. The Initial Sale Price to the Eligible Purchaser shall be established'so
that a household earning no more than the Base Income for a family of
three (3) would pay no more than 30% of gross income for the sum of annual
debt service on a mortgage of 95% of the sales price (including principal and
interest) plus real estate taxes, insurance, and any condominium and/or
association fees. The Maximum Resale Price Multiplier shall be established
by dividing the Initial Sales Price by the applicable area median income
published by HUD, adjusted for household size.
6. Each Deed Rider shall require the Affordable Unit owner at the time
he/she desires to sell the Affordable Unit to notify the Monitoring Agent and
the Municipality in writing of his/her desire to sell (the "Notification to Sell").
The Monitoring Agent will reply in writing within 30 days of receipt of the
notification to sell indicating the Maximum Resale Price.
7. The owner of the Affordable Unit must thereafter offer the Unit to the
(2001-0060/school regulatory agrement3) 4
Municipality which may, in conjunction with the Monitoring Agent, locate an
eligible purchaser or exercise its right of first refusal. If the Municipality or
the Monitoring Agent fail to locate an eligible purchaser or the Municipality
fails to exercise its right of first refusal, the seller must use its best efforts to
locate a purchaser who meets the income guidelines.
8. If the Affordable Unit owner is unable to find an eligible
purchaser within a 180-day period from the date of the Notification to Sell,
the seller must notify in writing three local non-profit housing agencies of the
availability of the Affordable Unit., If after 30 days none of the non-profit
housing agencies has agreed to purchase the unit, the seller can sell to any
person, regardless of his/her income, at the Maximum Resale Price. The
purchaser would be required to execute a Deed Rider and, upon resale, be
subject to the restrictions as described above.
B. RESALE TO OTHER THAN ELIGIBLE PURCHASER —
PURCHASE BY MUNICIPALITY.
1. In the event that the Municipality purchases an Affordable Unit
pursuant to its right to do so as contained in the Deed Rider then the
Municipality shall within six (6) months of the date of registering the Deed
either: (i) sell the Unit to an Eligible Purchaser at the same price for which it
purchased the Unit plus any expenses incurred by the Municipality during
this period of ownership, subject to a Deed Rider satisfactory in form and
substance to the Municipality and the recording of an Eligible Purchaser
Certificate satisfactory in form and substance to the Municipality the method
for selecting such Eligible Purchaser to be approved by the
Monitoring Agent, or, (ii) rent the Affordable Unit to a person who meets the
income guidelines of the Eligible Purchaser, upon terms and conditions
satisfactory to the Monitoring Agent and otherwise in conformity with the
requirements of the Guidelines.
III. DEVELOPER'S COVENANTS AND RESPONSIBILITIES.
A. THE DEVELOPER HEREBY REPRESENTS, COVENANTS AND
WARRANTS AS FOLLOWS:
K
1 . The Developer:
a) is a limited dividend organization meeting the criteria set out in
Section E below and is duly organized under the laws of the
Commonwealth of Massachusetts, and is qualified to transact
business under the laws of this State;
b) has the power and authority to own its properties and assets
and.to carry on its business as now being conducted, and has the full
legal right, power and authority to execute and deliver this Agreement;
[2001-0060/school regulatory agrement3] 5
f
c) has the full legal right, power and authority to execute and
deliver this Agreement.
2. The execution and performance of this Agreement by the Developer
will not violate or, as applicable, has not violated any provision of law, rule or
regulation, or any order of any court or other agency or governmental body,
and will not violate or, as applicable, has not violated any provision of any
indenture, agreement, mortgage, mortgage note, or other instrument to
which the Developer is a party or by which it or the Project is bound, will not
result in the creation or imposition of any prohibited encumbrance of any
nature.
3. The Developer will, at the time of execution and delivery of this-
Agreement, have good and marketable title to the premises constituting the
Project free and clear of any lien or encumbrance (subject to any'
encumbrance created pursuant to this Agreement, any loan relating to the
Project the terms of which are approved by the Municipality, or other
permitted encumbrances, including mortgages referred to below).
4. There is no action, suit or proceeding at law or in equity or by or 4'
before any governmental instrumentality or other agency now pending, or, to
the knowledge of the Developer, threatened against or affecting it, or any of
its properties or rights, which, if adversely determined, would materially
impair its right to carry on business substantially as now conducted (and as
now contemplated by this Agreement) or would materially adversely affect its
financial condition.
B. SALE OF UNITS.
Except for sales of Units to home buyers or to the Barnstable Housing
Authority as permitted by the terms of this Agreement, Developer will not
sell, transfer, lease, exchange or mortgage the Project without the prior
written consent of the Municipality.
C. EMINENT DOMAIN OR DESTRUCTION OF PREMISES.
Until such time as decisions regarding repair of damage due to fire or other
casualty, or restoration after taking by eminent domain, repairs shall be'
made by homebuyers or the Barnstable Housing Authority or the Municipality
should ownership be in either of those entities, the Developer agrees that if
the Project, or any part thereof, shall be damaged or destroyed or shall be '
condemned or acquired for public use, the Developer will use its best efforts
to repair and restore the Project to substantially the same condition as
existed prior to the event which caused such damage or destruction, or to
relieve the condemnation, and thereafter to operate the Project in
accordance with the terms of this Agreement, subject to the approval of the
12001-00601school regulatory agrement3J 6
Project's lenders, which lenders have been approved by the Municipality.
D. COMPLIANCE.
1. The Developer agrees to comply and to cause the Project to be in
compliance with all requirements of the comprehensive permit, the NEF
Guidelines and all other applicable laws, rules,kregulations, and executive
orders. The Municipality, the Monitoring Agent or its designees shall have
access during normal business hours to all books and records of the
Developer and the Project in order to monitor the Developer's compliance
with the terms of this Agreement and with the Comprehensive Permit.
2. Developer hereby agrees that any and all requirements of the laws of
the Commonwealth of Massachusetts to be satisfied in order for the
provisions of this Agreement to constitute restrictions and covenants running
with the land, shall be deemed to be satisfied in full and that any
requirements of privileges of estate are also deemed to be satisfied in full.
E. LIMITED-DIVIDEND ORGANIZATION CRITERIA.
1. The Developer agrees that Project development costs will be
approved by the Municipality and Barnstable Housing Authority in its role as
Monitor which approval shall not unreasonably be denied. The Developer
further agrees that the aggregate profit from the Project net of related party
expenses, including developer's fees, shall not exceed twenty percent (20%)
of total development costs of the Project (the "Allowable Profit"). All profits
from the Project in excess of the Allowable Profit (the "Excess Profit") shall
be paid by the Developer to the Municipality to be deposited into the
Municipality's Low and Moderate Income Housing Fund to be used by the
Municipality for the purposes of encouraging, creating, or subsidizing the
construction or rehabilitation of affordable housing elsewhere in the
Municipality.
2. Before a certificate of occupancy is issued for the final (or sixth)
market-rate unit, .the proceeds from the sale of said unit shall be held in
escrow by the Monitoring Agent, until such time as the Monitoring Agent
certifies the amount of profit. All profits in excess of the Allowable Profit shall
be deducted by the Monitoring Agent from the amount being held in escrow
and paid by the Monitoring Agent into the Municipality's Low and Moderate
Income Housing Fund. In the event that the Developer decides to purchase
the sixth market-rate. unit, then, prior to the issuance of a Certificate of
Occupancy for said unit, the Developer shall deposit with the Monitoring
Agent a sum which is the average purchase price of the five (5) units that
were previously sold, said sum to be placed into escrow under the same
terms and conditions described above. The Monitoring Agent is empowered
to review and challenge the purchase price for the sixth market-rate unit if in
[2001.0060/school regulatory agrement3l 7
ti
his opinion it deviates from the sale prices for the other five units.
3. Upon issuance of final Certificates of Occupancy for all of the units,
the Developer shall pay for and deliver to the Municipality and the Monitoring
Agent, a full compilation of total development costs (net of related-party
expenses) and total revenues on a federal income tax basis, prepared and
certified by a certified public accountant acceptable to the monitoring agent
(the "Certified Cost and Income Statement").
4. If all units at the Project have not.been sold as of the date the
Certified Cost and Income Statement is delivered to the Municipality, the
Developer shall at least once every ninety (90) days thereafter until such
time as all of the units are sold, deliver to the Municipality an updated
Certified Cost and Income Statement.
5. For as long as the Developer complies with the requirements of this
Section, the Developer shall be deemed to be a Limited Dividend
Organization within the meaning of the Act.
6. At any point prior to the sale of all the Units, but at least annually, the
Monitoring Agent, at its sole discretion, may require the Developer to provide
the Monitoring Agent with an audited Certified Cost and Income Statement
prepared and certified by a certified public accountant acceptable to the
monitoring agent (the "Certified Cost and Income Statement") and any other
financial information regarding the project that will assist the Monitoring
Agent in fulfilling its responsibilities.
7. Remedies to enforce the requirements of this paragraph shall include
but not be limited to the refusal to issue an Occupancy Permit or Permits, the
transfer of the funds being held in escrow to the Municipality's Low and
.Moderate Income Housing Fund and the execution of a lien on the property.
IV. MUNICIPALITY COVENANTS AND RESPONSIBILITIES.
A. The Municipality agrees that all amounts constituting Excess Profit, -
Windfall Amount, or any amount paid to the Municipality by the Developer or
the Unit Seller pursuant to the provisions of this Agreement shall be
deposited in the Municipality's Affordable Housing Fund. This Affordable
Housing Fund shall be deemed to be a fund for gifts for specific purposes
under M.G.L. c. 44, §53A and shall be held in an interest-bearing account
used from time-to-time by the Municipality with approval of the Municipality's
Housing Committee or any successor committee whose purpose is to advise
the Municipality on affordable housing issues, for the purpose of reducing
the cost of the Project's Affordable Units for Eligible Purchasers, and for the
purposes of encouraging, creating, or subsidizing the construction or
rehabilitation of housing for Low to Moderate Income individuals and families
elsewhere in the Municipality.
(2001-0060/school regulatory agrement3l 8
B. The Municipality, and any delegate to which the Municipality might
assign its rights and duties under this Agreement, agrees that it will use such
means as provided in this Agreement and the attached Deed Rider to
maintain the affordability of the Units.
V. MONITORING AGENT COVENANTS AND RESPONSIBILITIES.
.4
A. MONITORING AGENT.
1 . The Barnstable Housing Authority agrees to perform the duties of
Monitoring Agent and to adhere to the responsibilities as defined in the
Monitoring and Marketing Agreement entered between the Barnstable
Housing Authority and the Developer (attached hereto and made a part of
this Agreement). In the event that the affordable units are to be sold to
eligible purchasers then the Cape Homeownership Center or any successor
-in interest shall be responsible for conducting a lottery to select
homeowners.
2. Within sixty (60) days after delivery by the Developer to the
Barnstable Housing Authority ("BHA") of the Certified Cost and Income
Statement (see Section III, subsection E, paragraph 2 above), BHA will
submit to the Municipality its figures and analysis based upon the Statement
(in,a form agreed to by the Municipality).
VI. RECORDING OF AGREEMENT.
Upon execution, the Developer shall immediately cause this Agreement and
any amendments hereto to be recorded with the Registry of Deeds for
Barnstable County or, if the Project consists in whole or in part of registered
land, file this Agreement and any amendments hereto with the Registry
District of the Barnstable Land Court (collectively hereinafter the "Registry of
Deeds"), and the Developer shall pay all fees and charges incurred in
connection therewith. Upon recording or filing, as applicable, the Developer
shall immediately transmit to the Monitoring Agent and the Municipality
evidence of such recording or filing including the date filed thereof, and the
instrument, book, page or registration number of the Agreement.
VII. LAW GOVERNING AGREEMENT.
This Agreement shall be governed by the laws of the Commonwealth of
Massachusetts. Any amendments to this Agreement must be in writing and
executed by all of the parties hereto. The invalidity of any clause, part or .
provision of this Agreement shall not affect the validity of the remaining
portions hereof.
VIII. NOTICE.
(2001-0060/school regulatory agrement3( 9
All notices to be given pursuant to this Agreement shall be in writing and
shall be deemed given when delivered by hand or when mailed by certified
or registered mail, postage prepaid, return receipt.requested, to the parties
hereto at the addresses set forth below, or to such other place as a party
may from time-to-time designate by written notice.
IX. HOLD HARMLESS. ,
The Developer hereby agrees to indemnify and hold harmless the
Municipality and/or its delegate from any and all actions or inactions by the
Developer, its agents, servants or employees which result in claims made
against Municipality and/or its delegate, including but not limited to, awards,
judgments, out-of-pocket expenses and attorney's fees necessitated by such
actions.
X. ENTIRE UNDERSTANDING.
A. This Agreement and its constituent exhibits marked "A", "B" and "C"
hereby made part of the Agreement, shall constitute the entire understanding
between the parties and any amendments or changes hereto must be in
writing, executed by the parties, and appended to this document.
B. This Agreement and all of the covenants, agreements and restrictions
contained herein shall be deemed to be for the public purpose of providing.
safe affordable housing and shall be deemed to be, and by these presents
are, granted by the Owner to run in perpetuity in favor of and be held by the
Municipality as any other permanent restriction held by.a governmental body
as that term is used in MGL 184, Section 26 which shall run with the land
described in Exhibit "A" hereto annexed and shall be binding upon the Owner
and all successors in title. This Agreement is made for the benefit of the
Municipality and the Municipality shall be deemed to be the holder of the
restriction created by this Agreement. The Municipality has determined that
the acquiring of such a restriction is in the public interest. The Municipality
shall not be subject to the defense of lack of privity of estate. The covenants
and restrictions contained in this Agreement shall be deemed to affect the
title to the property described in Exhibit "A".
XI. TERM OF AGREEMENT.
The term of this Agreement shall be perpetual.
XII. SUCCESSORS AND ASSIGNS.
A. The Parties to this Agreement intend, declare, and covenant on behalf
of themselves and any successors and assigns their rights and duties as
defined in this Regulatory Agreement and the attached Monitoring
[2001.0060/school regulatory agrement3j
10
Agreement.
B. The Developer intends, declares, and covenants on behalf of itself
and its successors and assigns that (i) this Agreement and the covenants,
agreements and restrictions contained herein shall be and are covenants
running with the land, encumbering the Project for the term of this
Agreement, and are binding upon the Developer's successors in title; (ii) are
not merely personal covenants of the Developer; and, (iii) shall bind the
Developer, its successors and assigns and inure to the benefit of the
Municipality and its successors and assigns for the term of the Agreement.
XIII. DEFAULT.
If any default, violation or breach by the Developer of this Agreement is not
cured to the satisfaction of the Monitoring Agent within thirty (30) days after
notice to the Developer thereof, then the Monitoring Agent may send
notification to the Municipality that the Developer is in violation of the terms
and conditions hereof. The Municipality may exercise any remedy available
to it. The Developer will pay all costs and expenses, including legal fees,
incurred by the Monitoring Agent in enforcing this Agreement, and the
Developer hereby agrees that the Master Deed of the Condominium will
allow the Municipality and the Monitoring Agent to secure a lien on any and
all property that is subject of the comprehensive permit to secure payment of
such costs and expenses. The Monitoring Agent may perfect such a lien on
the Condominium Project by recording a certificate setting forth the amount
of the costs and expense due and owing in the Registry of Deeds or the
Registry of the District Land Court for Barnstable County. A purchaser of the
Project or any portion thereof will be liable for the payment of any unpaid
costs and expenses that were the subject of a perfected lien prior to the
purchaser's acquisition of the Project or portion thereof. Any monies being
held in escrow by the Monitoring Agent at the time of a breach may be used
by the Monitoring Agent to cure the breach.
XIV MORTGAGEE CONSENT.
The Developer represents and warrants that it has obtained the consent of
all existing mortgagees of the Project to the execution and recording of this
Agreement and to the terms and conditions hereof and that all such
mortgagees have executed a consent to this Agreement.
IN WITNESS WHEREOF, we hereunto set our hands and seals this
day of August, 2002.
r
[2001.0060/school regulatory agrement3l 1 1
CHATHAM REAL PROPERTIES, INC., the Developer
By:
Name: `
Title:
TOWN OF BARNSTABLE, the Municipality
By:
Name: John C. Klimm, Town Manager
CAPE COD BANK AND TRUST CO.
By:
Name:A
Title: '
BARNSTABLE HOUSING AUTHORITY,
Monitoring Agent
Name: Thomas K. Lynch, Director
i
f ,
12001.0060/school regulatory agrement3] 12
COMMONWEALTH OF MASSACHUSETTS
County of Barnstable) ss: Date: August , 2002.
Then personally appeared the above-named
, of Chatham Real Properties, Inc., the
Developer, who acknowledged the foregoing instrument to be his/her free
act and deed, before me.
Name: Notary Public
My commission expires:
COMMONWEALTH OF MASSACHUSETTS
County of Barnstable) ss: Date:, August , 2002.
Then personally appeared the above-named John C. Klimm, the
Town Manager of the Town of Barnstable, the Municipality, who
acknowledged the foregoing instrument to be his free act and deed, before
me.
Name: Notary Public
My commission expires:
COMMONWEALTH OF MASSACHUSETTS
County of Barnstable) ss: Date: August , 2002.
Then personally appeared the above-named Thomas K. Lynch,
Director of the Barnstable Housing Authority, the Monitoring Agent,
who acknowledged the foregoing instrument to be his free act and deed,
before me.
Name: Notary Public
My commission expires:
(2001.0060/school regulatory agrement3J
13
Exhibit A
The Project Locus
Three parcels of land located in said Hyannisport, bounded and described as follows:
PARCEL ONE
All that certain lot, piece or parcel of land, together with the improvements erected
thereon, situate, lying and being on the Easterly side of Scudder Avenue, so-called, in the
Village of Hyannisport, bounded and described as follows:
WESTERLY by the town road leading to the.harbor (Scudder Avenue);
NORTHERLY by the land and orchard formerly of Eli Hinkley;
EASTERLY and
SOUTHERLY by land formerly of Desire Scudder;
and is ten (10) rods long north and south and eight,(8) rods wide east and west and
contains eighty (80) rods.
PARCEL TWO
All that certain lot, piece or parcel of land, together with the improvements erected
thereon, situate, lying and being on the Northerly.side of Lake Avenue, so-called, in the
Village of Hyannisport, bounded and described as follows:
Beginning at the northwesterly corner of said lot, piece or parcel at the northeasterly
corner or land now or formerly of Elijah H. Phinney known as "School House Lot" (Lot
No. 1 and land now or formerly of Frank McCabe);
THENCE running South 88' East, by said land now or formerly of McCabe
to the southeasterly corner of said land now or formerly of
McCabe, marked by an iron pipe set in the ground;
THENCE North 62' East to the end of the "School House Pond", so-called;
THENCE in a southerly.and easterly direction by the edge of said Pond, to
the division line between Lots 96 and 97 in Section 3 as shown on
a "Plan of Seashore Lots at Hyannisport, Mass., belonging to
Hyannis Land Co., at Hyannis, Barnstable County, Mass., 1872, R.
Cook, Surveyor", recorded with Barnstable County Registry of
Deeds, Book 111, Page 30, extended to the Pond.
r
i
THENCE southerly by said extended dividing line, to "Lake Avenue" as
shown on said plan;
THENCE westerly by said Lake Avenue to the southeasterly corner of land
now or formerly of Elijah H. Phinney, known as the "School
House Lot" as aforesaid;
THENCE northerly by said land now or formerly of Elijah H. Phinney to the
point of beginning.
PARCEL THREE
All that certain lot, piece or parcel of land, together with the improvements erected
thereon, situate, lying and being in the Village of Hyannisport, bounded and described as
follows:
WESTERLY by the east side of Scudder Avenue, seventy (70) feet;
NORTHERLY by land now or formerly of Harriet C. Carpenter, about one
hundred twenty- five (125) feet;
EASTERLY by land now or formerly of said Carpenter, about seventy (70) feet;
SOUTHERLY by land now or formerly of E. Henry Phinney, about one hundred
twenty-five (125) feet.
Containing an area of 115`h of an acre, more or less.
For title see deed recorded at Book 11125, Page 75 in the Barnstable County Registry of
Deeds.
S
EXHIBIT B
DEED RIDER
for
FHLBB New England Fund
(Annexed to and made a part of that certain Deed (the "Deed")
from Chatham Real Property Inc, ("Grantor")
to (Grantee")
dated
WITNESSETH:
WHEREAS, the Developer of the Land has received a comprehensive permit under Chapter
40B of M.G.L. for the purpose of constructing School House Pond Condominiums; eight (8)
residential units (the"Project") comprised of six (6) units to be sold by the Project Developer at market
rates and two (2) units to be sold by the Project Developer to either the Barnstable Housing Authority
for rental to households with low and moderate incomes or to an eligible low or moderate income
purchaser , in accordance with the terms and provisions of the Regulatory Agreement by and
between the Project Developer and the Member Bank, as part of the New England Fund Program
(the "Regulatory Agreement");
WHEREAS, the Municipality has determined that the rights and restrictions granted herein to
the Municipality serve the public's interest in the creation and retention of affordable housing for
persons and families of low and moderate income and in the restricting of the rental and resale price
of property in order to assure its affordability by future low and moderate income purchasers;
WHEREAS, pursuant to the Regulatory Agreement for this Project, if the Barnstable Housing
Authority purchases the affordable units, the two Affordable Units shall be rented to a household with
a maximum income of 80% of Area Median Income or less of the Area Median Income (AMI) of
Barnstable-Yarmouth Met ropolitan.Statistical Area (MSA) and that rent (including utilities) shall not
exceed the rents established by the Department of Housing and Urban Development (HUD) for a
household whose income is 80 of the median income of Barnstable-Yarmouth Metropolitan
Statistical Area... In the event that utilities are separately metered, the utility allowance established by
the Barnstable Housing Authority shail be deducted from HUD's rent level.
WHEREAS, pursuant to the Reg ulatory'Agreement, in the event the Barnstable Housing
Authority decides not to purchase the two affordable units or decides in the future to sell the two (2)
affordable units, eligible purchasers, such as Grantee, shall be given the opportunity to purchase
affordable unit at a discount of the property's appraised fair market value if the purchaser agrees to
convey the property on resale to an eligible purchaser located by the Municipality or, to the
Municipality; for a "Maximum Resale Price". The Maximum Resale Price shall be determined by
dividing the Initial Sales Price by the applicable area median income published by HUD, adjusted for
household size at the time of resale, as determined by the Monitoring Agent, (as specified in the
Regulatory Agreement) or, if there is no eligible purchaser who can qualify to purchase the property
at the normal Maximum Resale Price, then to an eligible purchaser for a lesser, modified Maximum
Resale Price equal to the amount for which an eligible purchaser can qualify; [Also see §2(e), below.]
(2001.00601deedriderl I 1
f.
WHEREAS, the Grantor and the Grantee are participating in the NEF Program, and in
accordance with the NEF Program, the Grantor is conveying that certain real property more
particularly described in the Deed ("Property") to the Grantee at a consideration which is less than the
appraised value of the Property; and,
NOW THEREFORE, as further consideration from the Grantee to the Grantor, and the
Municipality for the conveyance of the Property at a discount in accordance with the Regulatory
Agreement, the Grantee, his heirs, successors and assigns, hereby agrees that the Property shall be
subject to the following rights and restrictions which are hereby imposed for the benefit of, and shall
be enforceable by, the Grantor's assignees and designees, or the Monitoring Agent, or the
Municipality, acting by and through its Chief Elected Official. ;
1. Right of First Refusal:
(a) When the Grantee or any successor in title to the Grantee shall desire to sell, dispose
of or otherwise convey the Property, or any portion thereof, the Grantee shall first notify the
Monitoring Agent and subsequently the Municipality in writing of the Grantee's intention to so convey
the property (the "Notice"). The Monitoring Agent will reply in writing within thirty (30) days of receipt
of the notification to sell indicating the Maximum Resale Price. Within thirty (30) days of the giving of
the Notice by the Grantee, the Municipality shall notify the Grantee in writing as to whether the
Municipality is proceeding to locate an eligible purchaser of the Property or the Municipality shall
exercise its right of first refusal to purchase the Property (the "Municipality's Notice"). For the purpose
of this Deed Rider, an "eligible purchaser" shall mean a purchaser who satisfies the criteria set forth
in the Regulatory Agreement, and who, if located by the Municipality, is ready and willing to purchase
the Property within one hundred eighty (180) days after the Grantee gives the Notice.
(b) In the event that the Municipality's Notice states that the Municipality does not intend to
proceed to locate an eligible purchaser and that the Municipality does not intend to exercise its right
of first refusal to purchase the Property, or the Municipality fails to give the Municipality's Notice within
thirty (30) days, the Grantee must use diligent efforts to find an eligible purchaser within a one
hundred eighty (180) day period from the date the Property is put on the market, as determined by
the date of the first advertisement for sale, as set forth below. The term "diligent efforts" as used
herein shall mean: (1) the placement of an advertisement in the real estate section of at least one
newspaper of general circulation for a period of three consecutive weeks which sets forth a
customary description of the unit for,sale, the Maximum Resale Price, Grantee's telephone number,
and the phrase: "Sale of unit subject to certain guidelines and restrictions with respect to the
maintenance and retention of affordable housing for households of low and moderate income"; and,
(2) the receipt of satisfactory evidence that the new purchaser qualifies as an eligible purchaser. If
the Grantee is unable to locate an eligible purchaser within one hundred eighty (180) days from the
date the Property is put on the market, the seller can sell to any person, regardless of his/her income,
at the Maximum Resale Price. The purchaser would be required to execute a Deed Rider and, upon
resale, be subject to the restrictions as described above
(c) In the event the Municipality, within said thirty (30) day period, notifies the Grantee that
the Municipality is proceeding to locate an eligible purchaser or that the Municipality shall exercise the
p Y p g g
Municipality's right of first refusal to purchase the Property, the Municipality may locate an eligible
purchaser, who shall purchase the Property at the Maximum Resale Price subject to Deed Rider,
within one hundred eighty (180) days of the date that the Notice is given, or the Municipality may
purchase the Property itself at the Maximum Resale Price with one hundred eighty (180) days of the
(2001.0060\deed ride rl 1 2
r
date that the Notice is given. If more than one eligible purchaser is located by the Municipality, the
Municipality shall conduct a lottery or other like procedure to determine which eligible purchaser shall
be entitled to the conveyance of the Property.
(d) If an eligible purchaser is selected to purchase the Property, or if the Municipality
elects to purchase the Property, the Property shall be conveyed by the Grantee to such eligible
purchaser or to the Municipality as the case may be, by a good and sufficient quitclaim deed
conveying a good and clear record and marketable title to the Property free from all
encumbrances, except: (i) such taxes for the then current year as are not due and payable on the
date of delivery of the deed; (ii) any lien for municipal betterments assessed after the date of the
Notice; (iii) provisions of local building and zoning laws; (iv) all easements, restrictions,
covenants and agreements of record specified in the Deed from the Grantor to Grantee; (v) a
Regulatory Agreement with the Project Developer dated and recorded with the
Barnstable Registry of Deeds in Book , Page , the ("Regulatory Agreement").
The Regulatory Agreement cannot be amended without the consent of the Monitoring Agent; (vi)
such additional easements, restrictions, covenants and agreements of record as the Municipality
and the Monitoring Agent consents to, such consent not to be unreasonably withheld or delayed;
and, (vii) in the event that the Property is conveyed to an eligible purchaser, a Deed Rider
satisfactory in form and substance to the Monitoring Agent which the Grantee hereby agrees to
annex to said deed.
(e) Said deed shall be delivered and the purchase price paid (the "Closing") at the
Registry of Deeds in the County where the Property is located, or at the option of the eligible
purchaser (or the Municipality, as the case may be, if the Municipality is purchasing the Property),
exercised by written notice to the Grantee at least five (5) days prior to the delivery of the deed, at
such other place as the eligible purchaser (of the Municipality, as the case may be, if the Municipality
is purchasing the Property) may designate in said notice. The Closing shall occur at such time and
on such date as shall be specified in a written notice from the eligible purchaser (or the Municipality,
as the case may be, if the Municipality is purchasing the Property) to the Grantee, which date shall be
at least five (5) days after the date on which such notice is given, and if the eligible purchaser is a
purchaser located by the Municipality, or if the Municipality is purchasing the Property no later than
sixty (60) days after the Notice is given by the Grantee.
(f) To enable Grantee to make conveyance as herein provided, Grantee may if it so
desires at the time of delivery of the deed, use the purchase money or any portion thereof,to clear the
title of any or all encumbrances or interests; all instruments so procured to be recorded
simultaneously with the delivery of said deed.
(g) Water and sewer charges and taxes for the then current tax period shall be
apportioned and fuel value and any common area charges or association fees, if any, shall be
adjusted as of the date of Closing and the net amount thereof shall be added to or deducted from, as
the case may be, the purchase price payable by the eligible purchaser or by the Municipality.
(h) Full possession of the Property free from all occupants is to be delivered at the time of
the Closing, the Property to be then in the same condition as it is in on the date of the Grantee's
notice, reasonable wear and tear only excepted.
(i) If Grantee shall be unable to give title or to make conveyance as above stipulated, or if
any change of condition in the Property not included in the above exception shall occur, then the.
[2001.0060\deedriderI j 3
Closing shall be extended for up to thirty (30) days and Grantee shall remove any defect in title or to
restore the Property to the condition hereby provided for. The Grantee shall use best efforts to
remove any such defects in the title whether voluntary or involuntary and to restore the Property to
the extent permitted by insurance proceeds or condemnation award. The eligible purchaser (or the
Municipality, as the case may be, if the Municipality is purchasing the Property) shall have the
election, at either the original or any extended time for performance, to accept such title as the
Grantee can deliver to the Property in its then condition and to pay, therefore, the purchase price
without deduction, in which case the Grantee shall convey such title, except that in the event of such
conveyance in accordance with the provisions of this clause, if the Property shall have been taken by
a public authority, then the Grantee shall, unless the Grantee has previously restored the Property to
its former condition, either:
(i) pay over or assign to the eligible purchaser or the Municipality, as the case may
be, on delivery of the deed, all amounts recovered or recoverable on account of
such insurance or condemnation award less any amounts reasonable expended
by the Grantee for the partial restoration, or
(ii) if a holder of a mortgage on the Property shall not permit the insurance proceeds
or the condemnation award or part thereof to be used to restore the Property to
its former condition or to be so paid over or assigned, give to the eligible
purchaser or to the Municipality, as the case may be, a credit against the
purchase price, on delivery of the deed, equal to said amounts so retained by the
holder of the said mortgage less any amounts reasonably expended by the
Grantee for any partial restoration.
2. Rental to Persons of Low and Moderate Incomes
If the affordable units are owned by the Barnstable Housing Authority, said affordable units
shall be rented for a period of not less than one year to a household with a maximum income of 80%
of Area Median Income or less of the Area Median Income (AMI) of Barnstable-Yarmouth
Metropolitan Statistical Area (MSA) and that rent (including utilities) shall not exceed the rents
established by the Department of Housing and Urban Development (HUD) for a household whose
income is 80% of the median income of Barnstable-Yarmouth Metropolitan Statistical Area. In the
event that utilities are separately metered, the utility allowance established by the Barnstable Housing
Authority shall be deducted from HUD's rent level. .
3. Resale and Transfer Restrictions.
Except as otherwise stated herein, the Property or any interest therein, shall not at any time be
sold by the Grantee, the Grantee's successors and assigns, and no attempted sale shall be valid,
unless:
(a) the aggregate value of all consideration and payments of every kind given or paid by the
eligible purchaser (as located and defined in accordance with Section 1 above) or the
Municipality, as the case may be, to the then-owner of the Property for and in connection with
the transfer of such Property, is equal to or less than the Maximum Resale Price for the
Property, and,
(2001-0060\deedriderl 1 4
(i) if the Property is conveyed to an eligible purchaser, a certificate (the
"Eligible Purchaser Certificate") is obtained and recorded, signed and acknowledged by
the Monitoring Agent which Eligible Purchaser Certificate refers to the Property, the
Grantee, the eligible purchaser thereof, and the Maximum Resale Price therefor, and
states that the proposed conveyance, sale or transfer of the Property to the eligible
purchaser is in compliance with this Deed Rider and the Regulatory Agreement, and
there is also recorded a new Deed Rider executed by the eligible purchaser which new
Deed Rider the Eligible Purchaser Certificate certifies is satisfactory in form and
substance to the Monitoring Agent;
(ii) if the Property is conveyed to the Municipality, a Certificate (the "Municipal
Purchaser Certificate") is obtained from the Monitoring Agent and signed and
acknowledged by the Municipality and the Monitoring Agent and recorded with the
Registry of Deeds, which Municipal Purchaser Certificate refers to the Property, the
Grantee, the Municipality, and the Maximum Resale Price for the Property and states
that the proposed conveyance, sale or transfer of the Property to the Municipality is in
compliance with the rights, restrictions, covenants and agreements contained in this
Deed Rider and there is also recorded a new Deed Rider which Deed Rider is
satisfactory in form and substance to the Monitoring Agent; or,
(iii) if the Property is conveyed to a third party in accordance with Section 1,
the Monitoring Agent execute and deliver the Compliance Certificate in accordance with
Section 1.
(b) Any good faith purchaser of the Property, any lender or other party taking a security
interest in such Property and any other third party may rely upon a Compliance Certificate or an
Eligible Purchaser Certificate or a Municipal Purchaser Certificate referring to the Property as .
conclusive evidence of the matters stated therein and may record such Certificate in connection with
conveyance of the Property, provided, in the case of an Eligible Purchaser Certificate and a Municipal
Purchaser Certificate the consideration recited in the deed or other instrument conveying the Property
upon such resale shall not be greater than the consideration stated in the Eligible Purchaser
Certificate or the Municipal Purchaser Certificate as the case may be. If the Property is conveyed to
the Municipality, any future sale of the Property by.the Municipality shall be subject to the Regulatory
Agreement and the Deed from the Municipality shall contain a Deed Rider in form and substance
satisfactory to the Monitoring Agent together with an Eligible Purchaser Certificate from the
Monitoring Agent.
(c) Within ten (10) days of the closing of the conveyance of the Property from Grantor to
Grantee, the Grantee shall deliver to the Monitoring Agent and to the Municipality a true and certified
copy of the Deed of the Property, together with information as to the place of recording thereof in the
public records. Failure of the Grantee or Grantee's successors or assigns to comply with the
preceding sentence shall not affect the validity of such conveyance.
(d) Notwithstanding anything to the contrary contained in this Deed Rider, the Maximum W
Resale Price shall not be less than the purchase price which the Grantee paid for the Property plus
the costs of approved capital improvements and marketing expenses, as determined by the
Monitoring Agent.
12001-00601deedriderl J 5
(e) The Grantee understands and agrees that nothing in this Deed Rider or the Regulatory
Agreement in any way constitutes a promise or guarantee by the Grantor, Monitoring Agent or
Municipality that the Grantee shall actually receive the Maximum Resale Price for the Property or any
other price for the Property.
4. Restrictions Against Leasing and Junior Encumbrances.
The Property shall not be leased, refinanced, encumbered (voluntarily or otherwise) or
mortgaged without the prior written consent of the Municipality and the Monitoring Agent, provided,
however, that this provision shall not apply to a first mortgage granted in connection with this
conveyance. Any rents, profits, or proceeds from any transaction described in the last preceding
sentence which transaction has not received the prior written consent of the Monitoring Agent shall be
paid to and be the property of the Municipality. In the event that the Monitoring Agent, in the exercise
of its absolute discretion, consents to any such lease, refinancing, encumbrance or mortgage, it shall
be a condition to such consent that all rents, profits or proceeds from such transaction which exceeds
the carrying costs of the Property as determined by the Monitoring Agent in their sole discretion shall
be paid to and be the property of the Municipality. Notwithstanding the restrictions outlined in the
paragraph above, any Property purchased by the Municipality, under its Right of First Refusal, may
be rented by the Municipality, at its discretion, so long as the income limits for the renter household
meet the income requirements as defined in the Regulatory Agreement and that the rent charged is
consistent with relevant guidelines of the Department of Housing and Urban Development (HUD) or
any successor agency.
5. Covenants to Run With the Property.
(a) The Grantor and the Grantee, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, hereby grant and assign to the Municipality, the
Municipality's agents, successors, designees and assigns the right of first refusal to purchase the
Property as set forth herein, and to the Monitoring Agent and the Municipality the right to enforce the
rights and restrictions, covenants and agreements set forth in this Deed Rider. The Grantor and the
Grantee hereby grant to the Monitoring Agent and the Municipality the right to enter upon the
Property for the purpose of enforcing any and all of the restrictions, covenants and agreements herein
contained, and of taking all actions with respect to the Property which the Monitoring Agent and/or
Municipality may determine to be necessary or appropriate, with or without court order, to prevent,
remedy or abate any violation of the restrictions, covenants and agreements set forth herein. The
rights hereby granted to the Monitoring Agent and the Municipality shall be in addition to and not in
limitation of any other rights and remedies available to the Grantor or the Monitoring Agent or to the
Municipality for enforcement of the restrictions, rights, covenants and agreements set forth in this
Deed Rider. It is intended and agreed that all of the agreements, covenants, rights and restrictions
set forth above shall be deemed to be covenants running with the Property and shall be binding upon
and enforceable against the Grantee, the Grantee's successors and assigns and any party holding
title to the Property for the benefit of and enforceable by the Monitoring Agent and/or the Municipality,
the Monitoring Agent and/or Municipality's agents, successors, designees and assigns.
(b) This Deed Rider and all of the agreements, restrictions, rights and covenants contained
herein shall be deemed to be for the public purpose of providing safe affordable housing and shall be.
deemed to be, and by these presents are, granted by the Owner to run in perpetuity in favor of and be
held by the Municipality as any other permanent restriction held by a governmental body as that term
is used in M.G.L.C. Chap. 184, Sec. 26 which shall run with the land described in Exhibit "A" hereto
i2001.0060\deedridert J 6
annexed and shall be binding upon the Owner and all successors in title. This Agreement is made for
the benefit of the Municipality and the Municipality shall be deemed to be the holder of the restriction
created by this Agreement. The Municipality has determined that the acquiring of such a restriction is
in the public interest. The Municipality shall not be subject to the defense of lack of privity of estate.
The covenants and restrictions contained in this Agreement shall be deemed to affect the title to the
property described in Exhibit "A".
(c) The Grantee intends, declares and covenants on behalf of itself and its successors and
assigns (i) that this Deed Rider and the covenants, agreem'ents, rights and restrictions contained
herein shall be and are covenants running with the land, encumbering the Property for the term of this
Deed Rider, and are binding upon the Grantee's successors in title, (ii) are not merely personal,
covenants of the Grantee, and (iii) shall bind the Grantee, its successors and assigns and enure to
the benefit of the Municipality and their successors and assigns for the term of the Deed Rider.
Grantee hereby agrees that any and all requirements of the laws of the Commonwealth of
Massachusetts to be satisfied in order for the provisions of this Deed Rider to constitute restrictions
and covenants running with the land shall be deemed to be satisfied in full and that any requirements
of privity of estate are also deemed to be satisfied in full.
(d) The Monitoring Agent shall be entitled to a fee of three (3%) percent of the established
maximum sales price of the unit to the Municipality or an eligible purchaser for the services performed
according to the Monitoring Services Agreement (and referenced in the Regulatory Agreement). This
fee shall be initially paid by the Developer and thereafter, at the time of any resale, it shall be paid by
Grantee as a closing cost at the time of closing.
(e) Without limitation on any other rights or remedies of the Grantor, the Monitoring Agent,
the Municipality, their agents, successors, designees and assigns, any sale or other transfer or
conveyance of the Property in violation of the provisions of this Deed Rider, shall, to the maximum
extent permitted by law, be voidable by the Municipality or the.Monitoring Agent, their agents,
successors, designees and assigns by suit in equity to enforce such rights, restrictions, covenants,
and agreements.
6. Notice.
Any notices, demands or requests that may be given under this Deed Rider shall be sufficiently
served if given in writing and delivered by hand or mailed by certified or registered mail, postage
prepaid, return receipt requested, to the parties hereto at the addresses set forth below, or such other
addresses as may be specified by any party by such notice.
Municipality: Town Manager, 367 Main Street; Hyannis, MA 02601
Grantor:
Grantee:
-Monitoring Agent: Barnstable Housing,Authority, 146 South Street, Hyannis, MA 02601 .
Any such notice, demand or request shall be deemed.to have been given on the day it is hand
delivered or mailed.
[2001-00601deedriderlj 7
7. Further Assurances.
The Grantee agrees from time-to-time, as may be reasonably required by the Monitoring Agent
or the Municipality, to furnish the Monitoring Agent and the Municipality with a written statement,
signed and, if requested, acknowledged, setting forth the condition and occupancy of the Property,
information concerning the resale of the Property and all other information pertaining to the Property
or the Grantee's eligibility for and conformance with the Regulatory Agreement for this Project.
8. Waiver. tl .,
Nothing contained herein shall limit the rights of the Monitoring Agent and/or the Municipality to
release or waive, from time to time, in whole or in part, any of the rights, restrictions, covenants or
agreements contained herein with respect to the Property. Any such release or waiver must be made
in writing and must be executed by the Monitoring Agent and/or the Municipality or designee.
9. Severability.
If any provisions hereof or the application thereof to any person or circumstance shall come, to
any extent, to be invalid or unenforceable, the remainder hereof, or the application of such provision
to the persons or circumstances other than those as to which it is held invalid or unenforceable, shall
not be affected thereby, and each provision hereof shall be valid and enforced to the fullest extent
permitted by law.
10. Responsibility of the Monitoring Agent.
The Monitoring Agent shall not be held liable for any action taken or omitted under this
Agreement so long as it shall have acted in good faith and without gross negligence.
11. Indemnity.
The Developer agrees to indemnify and hold harmless the Monitoring Agent against all
damages, costs and liabilities, including reasonable attorney's fees, asserted against the Monitoring
Agent by reason of its relationship with the Project under this Agreement and not involving the
Monitoring Agent acting in bad faith and with gross negligence.
Executed as a sealed instrument this day of , 2002 ..
Grantor:
By:
Signature
Name:
Title:
f
Grantee:
12001.00601deedriderl I g
r
f
4
By:
Name: Signature
Title:
TOWN OF BARNSTABLE, Municipality,
Y
By:
John C. Klimm, Town Manager, Town of Barnstable
BARNSTABLE HOUSING AUTHORITY,
Monitoring Agent
By:
Thomas K. Lynch, Director
COMMONWEALTH OF MASSACHUSETTS
County of Barnstable, ss , 2002
Then personally appeared the above-named , Grantor, and
acknowledged the foregoing instrument to be his/her free act and deed,before me.
Notary Public
My commission expires
COMMONWEALTH OF MASSACHUSETTS
County of Barnstable, ss: , 2002
Then personally appeared the above-named Grantee(s), and
acknowledged the foregoing instrument to be his/her free act and deed, before me.
Notary Public
My commission expires:
COMMONWEALTH OF MASSACHUSETTS
County of Barnstable, ss: Date: July ; 2002.
[2001-00601deedriderl]
1 y
Then personally appeared the above-named , of Chatham
Real Properties, Inc., the Developer, who acknowledged the foregoing instrument to be his/her free
act and deed, before me.
Name: Notary Public
My commission expires: '
COMMONWEALTH OF MASSACHUSETTS
County of Barnstable, ss: Date: July , 2002.
Then personally appeared the above-named John C. Klimm, the Town Manager of the
Town of Barnstable, the Municipality, who acknowledged the foregoing instrument to be his free
act and deed, before me.
Name: Notary Public
My commission expires:
COMMONWEALTH OF MASSACHUSETTS
County of Barnstable, ss Date: July , 2002.
Then personally appeared the above-named Thomas K. Lynch, Director of the Barnstable
Housing Authority, the Monitoring Agent, who acknowledged the foregoing instrument to be his
free act and deed, before me.
Name: Notary Public
My commission expires:
(2001-00601deedriderl 10
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EXHIBIT C
MONITORING SERVICES AGREEMENT
(FHLBB — NEW ENGLAND FUND)
For Ownership Projects
THIS AGREEMENT is made as of the day of July, 2002, by and
between Chatham Real Properties, Inc., a Massachusetts corporation, having an
address at 299 North Street, Hyannis, Massachusetts 02601 ("Developer"), and the
Town Manager of the Town of Barnstable, of 367 Main Street, Hyannis, MA 02601
(as the "Municipality"), and the Barnstable Housing Authority, of 146 South Street,
Hyannis, MA 02601, ("Monitoring Agent").
Background
A. The Federal Home Loan Bank of Boston FHLBB has agreed to provide a
subsidized advance (the "Subsidized Advance") under the New England Fund (the
"NEF") to Cape Cod Bank & Trust (the "Member") for the purpose of financing a project
containing residential housing units located at 537, 543 and 549 Scudder Avenue,
Hyannis, Massachusetts (the "Project").
B. The Project has received a comprehensive permit from the Zoning Board
of Appeals of the Town of Barnstable (the "Municipality") under Massachusetts General
Laws, Chapter 40B (the "Comprehensive Permit") and is subject to a regulatory
agreement (the "Regulatory Agreement") between the Member and the Developer of the
Project (the "Developer"').
C. Pursuant to the guidelines of the NEF, the Comprehensive Permit and the
Regulatory Agreement, at least two (2) units in the Project (the "Affordable Units") are
required to be sold to households whose incomes do not exceed 80% of the median
income (adjusted for household size) for the Barnstable/Yarmouth Statistical Area. In
addition, the Affordable Units will be subject to deed riders.governing resale (the
"Affordability Requirement") in perpetuity.
D. Pursuant to the NEF guidelines for comprehensive permit projects, the
Comprehensive Permit and the Regulatory Agreement, the Developer may not receive
profit in excess of 20% of total development costs defined in the Regulatory Agreement
(net of related party expenses) of the Project (the "Limited Dividend Requirement").
E. Pursuant to requirements of the Regulatory Agreement and the
Comprehensive Permit, the Developer has agreed to retain the Monitoring Agent to
perform monitoring and enforcement services regarding compliance of the Project with
the Affordability Requirement and compliance of the Developer with the Limited
Dividend Requirement.
f
[2ooi-oommon itch at]i 1
F. The Developer has agreed to provide his full cooperation to the Monitoring
Agent and to provide said Monitoring Agent any and all documents said Monitoring
Agent identifies as being necessary to fulfill its monitoring responsibilities
Agreement
For good and valuable consideration. the receipt and sufficiency of which are
hereby acknowledged, the parties hereto, intending to be legally bound hereby, agree
as follows: '
I. The Developer Covenants and Responsibilities:
A. Maintenance of Complete and Accurate Records. The Developer shall
keep and preserve full, complete and true records at its office at 297 North Street,
Hyannis, Massachusetts, or at such other place or places as it shall designate by written
notice, provided that said change of location is acceptable to the Monitoring Agent.
Said records shall show all costs, expenditures, sales, receipts, assets and liabilities,
and profits and losses regarding the Project and shall be maintained in a manner and
form satisfactory to the Monitoring Agent and in accordance with sound and accepted
accounting principles. The Developer shall punctually make full and proper entries of all
business transacted regarding the Project.
B. Access to Books and Records: The Developer shall permit the
Monitoring Agent or it its representatives to examine or audit the records during normal.
business hours and shall, upon the Monitoring Agent's request, explain the methods of
keeping the records
C. Certified Cost and Income Statement: At the request of the Monitoring
Agent, but at least annually from the date of the execution of this agreement, the
Developer shall, at its sole expense, deliver to the Municipality and the'Monitoring
Agent, a full compilation of total development costs (net of related-party expenses) and
total revenues on a federal income tax basis, prepared and certified by a certified public
accountant acceptable to the monitoring agent. (the "Certified Cost and Income
Statement").
D. Escrow of Proceeds from Sale of Sixth Market Rate Unit: The
Developer agrees to allow the Monitoring Agent to hold the proceeds from the sale of
the sixth market rate unit in escrow (or an amount equal to the average sales price of
the other five (5) units in the event that the Developer purchases the sixth unit)
in accordance with the terms of the Regulatory Agreement.
E. Excess Profits: The Developer agrees to pay all profits from the Project
in excess of the Allowable Profit (the "Excess Profit") to the Municipality to be deposited
into the Municipality's Low and Moderate Income Housing Fund to be used by the
Municipality for the purposes of encouraging, creating, or subsidizing the construction or
rehabilitation of affordable housing elsewhere in the Municipality.
(2001.0060\Mon itch atl1 2
F. Compliance with Terms of Comprehensive Permit and Regulatory
Agreement and Declaration of Restrictive Covenants: The Developer agrees to
comply fully with all the terms and conditions of the Comprehensive Permit and the
Regulatory Agreement and Declaration of Restrictive Covenants.
II. The Monitoring Agents Covenants and Responsibilities: The Monitoring
Agent shall monitor the compliance of the Project with the Affordability Requirements
and the compliance of the Developer with the Limited Dividend Requirement, including,
but not limited to, the following:
(A) Receipt of cost certifications for the Project from the developer (net of
related party expenses) and total revenue on a federal income tax basis
prepared and certified by a certified public accountant and acceptable to
the monitory agent. (the "Certified Cost and Income Statement").
(B) Review of (x) the adequacy and completeness of cost
certifications, and, (y) (.the substantive compliance of the Project with the
Affordability Requirement and of the Developer with the Limited Dividend
Requirement.
(C) Retention of the proceeds of the sale of sixth unit in escrow
pending the satisfactory completion of (the "Certified Cost and Income
Statement") and a determination of whether there is an Excess Profit.
(D) Review of income certifications, deeds and deed riders, wills with
respect to initial sales of Affordable Units.
(E) Monitoring of re-sales of Affordable Units for compliance with
the terms of the applicable deed riders and issuance of certifications, as
appropriate approving re-sales and the payment of recapture amounts.
(F) Preparation annually of a report (the "Annual Compliance Report")
to the Member and the Municipality,on the compliance (x) of the
Developer with reporting requirements (so long as the Developer still owns
units in the Project), (y) of the Project with the Affordability Requirement
and (z) of the Developer with the Limited Dividend Requirement (so long
as the Developer still owns units in the Project). The Annual Compliance
Report shall indicate the extent of noncompliance with the relevant
reporting and/or substantive requirements, describe efforts being made by
the Developer to remedy such noncompliance and, if appropriate,
recommend a demand by the Member for repayment of the loan to the
Developer or other possible enforcement action against the Developer.
(Gi) ' Circulation of an Annual Compliance Report to the
12001.0060\mon itch atl1 3
_ L
Member (while its loan is still outstanding) and to the Building
Commissioner of the Town of Barnstable within 120 days, of the
anniversary date of the signing of this Monitoring Agreement..
The Monitoring Agent shall provide reasonable supplemental monitoring on its
own initiative in order to ensure, to the extent practicable, the compliance of the Project
and the Developer with the Affordability Requirement and the Limited Dividend
Requirement. The services hereunder shall not include any construction period
monitoring. The services hereunder shall include follow-up discussions with the
Developer, if appropriate, after an event of noncompliance.
III.. Monitoring Services Fee. The Monitoring Agent shall be entitled to a fee of
three (3%) percent of the established maximum sales price of the each of the affordable
units for the services performed according to the terms of this Monitoring Services
Agreement. The initial monitoring fee shall be paid by the Developer prior to the
issuance of any building permits for the Project. Thereafter, with regard to subsequent
resales, the monitoring fee shall be paid by the Grantee at the time of the closing.
IV. Enforcement Services. In the event of violations of the substantive or reporting
requirements of the Regulatory Agreement or a failure by the Developer to take
appropriate actions to cure a default under the Regulatory Agreement, the Monitoring
Agent shall have the right, at its discretion, to take appropriate enforcement action
against the Developer, including, without limitation, notice to the FHLBB, to the
Municipality and/or to the Member or legal action to compel the Developer to comply
with the requirements of tits Regulatory Agreement. The Regulatory Agreement
provides for payment by the Developer of fees and expenses (including legal fees) of
the Monitoring Agent in the event enforcement action is taken against the Developer
thereunder and grants to the Monitoring agent a lien on the Project to secure payment
of such fees and expenses. The Monitoring Agent shall be entitled to seek recovery of
its fees and expenses incurred in enforcing the Regulatory Agreement against the
Developer and to assert a lien on the Project to secure payment by the Developer of
such fees and expenses. In.the event that the developer no longer owns units, these
shall become the liability of the Condominium Association.
In the event of a violation of the provisions of a deed rider, the Monitoring Agent
and the Municipality shall have the right, at their discretion, to take appropriate
enforcement action against the unit owner or the unit owner's successors in title,
including, without limitation, notice to the FHLBB, to the Municipality and/or to the
Member legal action to compel the unit owner to comply with the requirements of the
relevant deed rider. The form of deed rider will provide for payment by the unit owner of
fees and expenses (including legal fees) of the Monitoring Agent and the Municipality in
the event enforcement action is taken against the unit owner thereunder and will grant
to the Monitoring Agent and the Municipality a lien on the unit to secure payment of
such fees and expenses. The Monitoring Agent and the Municipality shall be entitled to
seek recovery of its fees and expenses incurred in enforcing a deed rider against the
r_
12001.0060Vnon itch at]1 4
unit owner and to assert a lien on the relevant unit to secure payment by the unit owner
of such fees and expenses.
V. Term. The monitoring services are to be provided for the full term of the
Regulatory Agreement which is perpetuity.
VI. Indemnity. The Developer agrees to indemnify and hold harmless the
Monitoring Agent against all damages, costs and liabilities, including reasonable
attorneys' fees, asserted against the Monitoring Agent by reason of its relationship with
the Project under this Agreement and not involving the Monitoring Agent acting in bad
faith and with gross negligence.
VII. Applicable Law. This Agreement, and the application or interpretation hereof,
shall be governed by the laws of The Commonwealth of Massachusetts.
Vill. Binding Agreement. This Agreement shall be binding,on the parties hereto,
their heirs, executors, personal representatives. successors and assigns.
IX. Headings. All paragraph headings in this Agreement are for convenience of
reference only and are not intended to qualify the meaning of the paragraph.
IN WITNESS WHEREOF, the-parties hereto have caused this Monitoring
Services Agreement to be duly executed on this day of August , 2002.
CHATHAM REAL PROPERTIES, INC., the Developer
By:
Name:
Title:
TOWN OF BARNSTABLE, the Municipality
By.
Name: John C. Klimm, Town Manager
BARNSTABLE HOUSING AUTHORITY, Monitoring Agent
By:
Name: Thomas K. Lynch, Director
[2001-0060\monitchatli 5
COMMONWEALTH OF MASSACHUSETTS
County of Barnstable) ss: Date: July , 2002.
Then personally appeared the above-named ' I
of Chatham Real Properties, Inc., the Developer, who acknowledged the foregoing
instrument to be his/her free act and deed, before me.
Name: Notary Public
My commission expires:
COMMONWEALTH OF MASSACHUSETTS
County of Barnstable) ss: Date: August , 2002.
Then personally appeared the above-named John C. Klimm, the Town
Manager of the Town of Barnstable, the Municipality, who acknowledged the
foregoing instrument to be his free act and deed, before me.
Name: Notary Public
My commission expires:
COMMONWEALTH OF MASSACHUSETTS
County of Barnstable) ss Date: August , 2002.
Then personally appeared the above-named Thomas K. Lynch, Director of the
Barnstable Housing Authority, the Monitoring Agent, who acknowledged the
foregoing instrument to be his free act and deed, before me.
Name: Notary Public
My commission expires:
(2001-0060Vnonitchatil 6
q^N y g d`p
N'l �.H-...=4...b'*'�' P� ..`L=....Y 9 -sJ. -d n s.R C1_3
REGULATORY AGREEMENT AND
DECLARATION OF RESTRICTIVE COVENANTS
This REGULATORY AGREEMENT AND DECLARATION OF RESTRICTIVE
COVENANTS is made this day of September, 2002, by and between Chatham
Real Properties, Inc. of 297 North Street, Hyannis, MA 02601 and its successors and
assigns (hereinafter the "Developer"); Cape Cod Bank and Trust Co. of 24 Workshop
Road, P.O Box 1180, South Yarmouth, MA 02663 (the "Bank"); the Town of Barnstable,,
367 Main Street, Hyannis, MA 02601 (the "Municipality"); and the Barnstable Housing
Authority of 146 South Street, Hyannis, MA 02601 (the "Monitoring Agent").
WHEREAS, the Developer intends to construct a housing development known as
`School House Pond Condominiums' on a 2.25-Acre parcel, of which 1.3 acres are
considered upland, located at 537, 543 & 549 Scudder Avenue, Hyannisport, MA, more
particularly described in the description of the project locus marked Exhibit "A" attached
hereto and made a part hereof (the "Project"); and,
WHEREAS, the Developer has been granted a Comprehensive Permit under
Massachusetts General Law Chapter 40B and local regulations by the Barnstable
Zoning Board of Appeals to construct eight (8) units, two (2) of which are to be sold to
the Barnstable Housing Authority and rented to Low and Moderate Income Families or
in the event that the Barnstable Housing Authority chooses not to purchase said units
or decides to sell them in the future, said units shall be sold to Low and Moderate
Income Families; which permit is recorded at the Barnstable Registry of Deeds in Book
ss , Page ; and,
WHEREAS, the Comprehensive Permit has specified that two (2) units, or 25% of the
total units in the Project, will be affordable to households earning no more than eighty
percent (80%) of the median income, by household size, for the Barnstable-Yarmouth
Metropolitan Statistical Area (the "Base Income") as published from time-to-time by the
United States Department of Housing and Urban Development ("HUD"), and that those
affordable units will remain affordable in perpetuity (the "Affordable Units" or the
"Units"); and,
WHEREAS, pursuant to the requirements of the Comprehensive Permit, the Developer
has obtained construction financing from the Cape Cod Bank and Trust Company (the
"Member") through the Federal Home Loan Bank of Boston's New England Fund
("NEF"), the NEF requires that the Project provide the number of Affordable Units
described above; and the Developer has agreed to comply with the requirements of the
Town of Barnstable Guidelines for Developments financed by NEF (the "Guidelines");
and,
WHEREAS, pursuant to the Guidelines for Comprehensive Permit projects, the
Comprehensive Permit and the Regulatory Agreement, the Developer may not receive
profit in excess of 20% of the total development costs (net of related party expenses) of
the Project (the "Limited Dividend Requirement"). Related party expenses shall mean .
(2001-0060/regagrmt82302) 1
I
those that are above standard and customary for the goods or service provided. For
hard construction costs, "standard and customary" shall be defined as equal to or less
than the lowest of three (3) competitive bids for the same service. For soft
development costs (legal expenses, accounting, and marketing) "standard and
customary" shall be defined as no more 10% above the approved development pro
forma submitted with the Comprehensive Permit application; and,
WHEREAS, pursuant to requirements of the Comprehensive Permit and this
Agreement, the Developer has agreed to retain the Barnstable Housing Authority as the
"Monitoring Agent" to perform monitoring and enforcement services regarding
compliance of the Project with the Affordability Requirement and compliance of the
Developer with the Limited Dividend Requirement.
NOW, THEREFORE, in mutual consideration of the agreements and covenants
contained herein, and other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties agree as follows:
I. PROJECT SCOPE AND DESIGN.
A. The Project, presently known as `School House Pond Condominiums'
located in Hyannisport, MA, will consist of eight (8) units, two (2) of which shall be
Affordable Units.
B. The Developer agrees to construct the Project in accordance with Plans
and Specification approved by the Barnstable Zoning Board of Appeals, with each unit
containing two bedrooms. In addition, the exterior finishing of the Affordable Units,
including walls, windows and doors, shall be identical in all respects to the exterior of
the market rate units. The interior finishing for the affordable units shall have new
color-matched appliances of Whirlpool or better, coordinated bathroom and kitchen
fixtures of American Standard or better, finish painted walls and woodwork, and finished
floors. Any amenity (cable television, alarm system, etc.) that is paid from association
funds shall be included within the Affordable Units. Each of the two (2) Affordable Units
shall each be granted the use of one (1) parking space in the Garage Buildings and this
shall be included in the Unit Deed.
C. The Project must be in full compliance with the State Building Code and
with all applicable state and federal building, environmental, health, safety and other
laws, rules and regulations, including, without limitation, all applicable federal and state
laws, rules and regulations relating to the operation of adaptable and accessible
housing for the handicapped. Except to the extent that the Project is specifically
exempt from such compliance by the Comprehensive Permit, the Project must also
comply with all applicable local codes, ordinances, and by-laws.
D. The Developer shall offer to sell to the Barnstable Housing Authority the
two affordable units at the price of $105,000, for each single unit. In the event that the
Barnstable Housing Authority purchases said units, they shall be rented to households
with a maximum income °of 80/° of Area Median Income (as defined by HUD), and that
[2001-0060/regagrmt82302] 2
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rent (including utilities) shall not exceed the rents established by the Department of
Housing and Urban Development (HUD) (or any successor agency) for a household
whose income is 80% of the median income of Barnstable-Yarmouth Metropolitan
Statistical Area. In the event that utilities are separately metered, the utility allowance
established by the Barnstable Housing Authority shall be deducted from HUD's rent
level, in accordance with the Comprehensive Permit and the Guidelines for eligible low
and moderate income renters. In the event that the Barnstable Housing Authority
chooses not to purchase said Affordable Units or should the Barnstable Housing
Authority, in the future, decide to sell said Affordable Units, said units must be
affordable to and sold to households with a maximum income of 80% of Area Median
Income (as defined by HUD), in accordance with the Comprehensive Permit and the
Guidelines, to an Eligible Purchaser. An Eligible Purchaser is a purchaser who satisfies
the criteria set forth in the Guidelines, as they now exist and may be amended in the
future.
E. Initial common condominium charges for the affordable units shall be
based on Basic Common Costs, which will include only those items of cost typical to
100% affordable developments. The Town of Barnstable is to review the budget for
initial Basic Common Costs and may disapprove ineligible items or unreasonable
amounts. The common charges shall be allocated to the affordable units on the basis of
sales prices, and among the affordable units on the basis of unit square footage.
Charges for parking and garage spaces shall also be allocated to the affordable units
on the basis of sale prices and among the affordable units on the basis of square
footage. Increases in common charges to affordable units will be limited to
documented increases in Basic Common Costs, approved by the Town. Owners of
affordable units will have full access to all services and amenities provided to owners of
market units, without discrimination. Any fees charged for the use of community
amenities, such as meeting rooms and recreation facilities, other than nominal fees,
shall be reduced for owners of affordable units by the same proportion that their
common charges are less than common charges for market units. No provisions of the
condominium documents relating to the subject property which are in any way contrary
to or inconsistent with the provisions of the Comprehensive Permit issued by the
Barnstable Zoning Board of Appeals or this Regulatory Agreement and Declaration of
Restrictive Covenants by and between the Declarant and the Town of Barnstable, shall
be of any force or effect.
F. The Monitoring Agent shall be entitled to a fee of three (3%) percent of
the established maximum sales price of the unit to the Municipality or an eligible
purchaser for the services performed according to the Monitoring Services Agreement
(and referenced in the Regulatory Agreement). This fee shall initially be paid by the
Developer and thereafter, with regard to resales, said monitoring fee shall be paid by
the Grantee as a closing cost at the time of closing.
IL RESALE RESTRICTIONS and COVENANTS OF PARTIES.
A. Deed Rider.
[2001-0060/regagrmt82302] 3
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1. The Deed Rider and any affordability criteria in this Agreement are
covenants which run with the land in perpetuity.
2.. If the Barnstable Housing Authority elects to purchase the two Affordable
Units from the Developer, as a condition of the sale, the Developer and the Barnstable
Housing Authority shall execute a Deed Rider in the form of `Exhibit B' as attached
hereto and made a part of this Agreement. This Deed Rider shall be made a part of the
deed from the Developer to the Unit Purchaser.
3. In the event that the Barnstable Housing Authority chooses not to
purchase said Affordable Units or decides to sell them in the future, said Affordable
Units shall be sold to an Eligible Purchaser, and as a condition of the sale, the
Affordable Unit Seller and the Affordable Unit Purchaser shall execute a Deed Rider in
the form of Exhibit "B" attached hereto and made a part of this Agreement. This Deed
Rider shall be made a part of the deed from the Affordable Unit Owner to the Unit
Purchaser.
4. The Deed Rider shall require that at the time of the initial resale and at all
subsequent resales, a similar Deed Rider satisfactory in form and substance to the
Municipality shall be executed and attached and made part of the Deed from the
Affordable Unit owner to the Eligible Purchaser, so that the affordability of the Unit will
be preserved in perpetuity.
5: The Initial Sale Price to the Eligible Purchaser shall be established so that
a household earning no more than the Base Income for a family of three (3) would pay
no more than 30% of gross income for the sum of annual debt service on a mortgage of
95% of the sales price (including principal and interest) plus real estate taxes,
insurance, and any condominium and/or association fees. The Maximum Resale Price
Multiplier shall be established by dividing the Initial Sales Price by the applicable area
median income published by HUD, adjusted for household size.
6. Each Deed Rider shall require the Affordable Unit owner at the time
he/she desires to sell the Affordable Unit to notify the Monitoring Agent and the
Municipality in writing of his/her desire to sell (the "Notification to Sell"). The Monitoring
Agent will reply in writing within 30 days of receipt of the notification to sell indicating the
Maximum Resale Price.
7. The owner of the Affordable Unit must thereafter offer the Unit to the
Municipality which may, in conjunction with the Monitoring Agent, locate an eligible
purchaser or exercise its right of first refusal. If the Municipality or the Monitoring Agent
fail to locate an eligible purchaser or the Municipality fails to exercise its right of first
refusal, the seller must use its best efforts to locate a purchaser who meets the income
guidelines.
8. If the Affordable Unit owner is unable to find an eligible purchaser within a
180-day period from the date of the Notification to Sell, the seller must notify in writing
three (3) local non-profit housing agencies of the availability of the Affordable Unit. If
[2001-0060/regagrmt82302] 4
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after 30 days none of the non-profit housing agencies has agreed to purchase the unit,
the seller can sell to any person, regardless of his/her income, at the Maximum Resale
Price. The purchaser would be required to execute a Deed Rider and, upon resale, be
subject to the restrictions as described above.
B. RESALE TO OTHER THAN ELIGIBLE PURCHASER —
PURCHASE BY MUNICIPALITY.
1. In the event that the Municipality purchases an
Affordable Unit pursuant to its right to do so as contained in the Deed Rider, then the
Municipality shall, within six (6) months of the date of registering the Deed, either: (i)
sell the Unit to an Eligible Purchaser at the same price for which it purchased the Unit
plus any expenses incurred by the Municipality during this period of ownership, subject
to a Deed Rider satisfactory in form and substance to the Municipality and the recording
of an Eligible Purchaser Certificate satisfactory in form and substance to the
Municipality the method for selecting such Eligible Purchaser to be approved by the
Monitoring Agent, or, (ii) rent the Affordable Unit to a person who meets the income
guidelines of the Eligible Purchaser, upon terms and conditions satisfactory to the
Monitoring Agent and otherwise in conformity with the requirements of the Guidelines.
III. DEVELOPER'S COVENANTS AND RESPONSIBILITIES.
A. THE DEVELOPER HEREBY REPRESENTS, COVENANTS AND
WARRANTS AS FOLLOWS:
1. The Developer:
a) is a limited dividend organization meeting the criteria set out
in Section E below and is duly organized under the laws of the
Commonwealth of Massachusetts, and is qualified to transact business
under the laws of this State;
b) ' has the power and authority to own its properties and assets
and to carry on its business as now being conducted, and has the full
legal right, power and authority to execute and deliver this Agreement;
c) has the full legal right, power and authority to execute and
deliver this Agreement.
2. The execution and performance of this Agreement by
the Developer will not violate or, as applicable, has not violated any'provision of law,
rule or regulation, or any order of any court or other agency or governmental body, and
will not violate or, as applicable, has not violated any provision of any indenture,
agreement, mortgage, mortgage note, or other instrument to which the Developer is a
party or by which it or the Project is bound, will not result in the creation or imposition of
any prohibited encumbrance of any nature.
(2001-0060/regagrmt82302) 5
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3. The Developer will, at the time of execution and delivery
of this Agreement, have good and marketable title to the premises constituting the
Project free and clear of any lien or encumbrance (subject to any encumbrance created
pursuant to this Agreement, any loan relating to the Project the terms of which are
approved by the Municipality, or other permitted encumbrances, including mortgages
referred to below).
4. There is no action, suit or proceeding at law or in equity
or by or before any governmental instrumentality or other agency now pending, or, to
the knowledge of the Developer, threatened against or affecting it, or any of its
properties or rights, which, if adversely determined, would materially impair its right to
carry on business substantially as now conducted (and as now contemplated by this
Agreement) or would materially adversely affect its financial condition.
B. SALE OF UNITS.
Except for sales of Units to home buyers or to the Barnstable Housing Authority as
permitted by the terms of this Agreement, Developer will not sell, transfer, lease,
exchange or mortgage the Project without the prior written consent of the Municipality.
C. EMINENT DOMAIN OR DESTRUCTION OF PREMISES.
Until such time as decisions regarding repair of damage due to fire or other casualty, or
restoration after taking by eminent domain shall be made by homebuyers or the
Barnstable Housing Authority or the Municipality should ownership be in either of those
entities, the Developer agrees that if the Project, or any part thereof, shall be damaged
or destroyed or shall be condemned or acquired for public use, the Developer will use
its best efforts to repair and restore the Project to substantially the same condition as
existed prior to the event which caused such damage or destruction, or to relieve the
condemnation, and thereafter to operate the Project in accordance with the terms of
this Agreement, subject to the approval of the Project's lenders, which lenders have
been approved by the Municipality.
D. COMPLIANCE.
1. The Developer agrees to comply and to cause the Project to be in
compliance with all requirements of the comprehensive permit, the NEF Guidelines and
all other applicable laws, rules, regulations, and executive orders. The Municipality, the
Monitoring Agent or its designees shall have access during normal business hours to all
books and records of the Developer and the Project in order to monitor the Developer's
compliance with the terms of this Agreement and with the Comprehensive Permit.
2. The Developer hereby agrees that any and all requirements of the laws of
the Commonwealth of Massachusetts to be satisfied in order for the provisions of this
Agreement to constitute restrictions and covenants running with the land, shall be
deemed to be satisfied in full and that any requirements of privileges of estate are also
deemed to be satisfied in full.
[2001-0060/regagrmt82302] 6
E. LIMITED-DIVIDEND ORGANIZATION CRITERIA.
1. The Developer agrees that Project development costs will be approved by
the Municipality and Barnstable Housing Authority in its role as Monitor which approval
shall not unreasonably be denied. The Developer further agrees that the aggregate
profit from the Project net of related party expenses, including developer's fees, shall
not exceed twenty percent (20%) of total development costs of the Project (the
"Allowable Profit"). Related party expenses shall mean those that are above standard
and customary for the goods or service provided. For hard construction costs,
"standard and customary" shall be defined as equal to or less than the lowest of three
(3) competitive bids for the same service. For soft development costs (legal expenses,
accounting, and marketing) "standard and customary" shall be defined as no more than
ten percent (10%) above the approved development pro forma submitted with the
Comprehensive Permit application. All profits from the Project in excess of the
Allowable Profit (the "Excess Profit") shall be paid by the Developer to the Municipality
to be deposited into the Municipality's Low and Moderate Income Housing Fund to be
used by the Municipality for the purposes of encouraging, creating, or subsidizing the
construction or rehabilitation of affordable housing elsewhere in the Municipality.
2. Before a certificate of occupancy is issued for the final (or sixth) market-
rate unit, the gross proceeds from the sale of said unit shall be held in escrow by the
Monitoring Agent, until such time as the Monitoring Agent certifies the amount of profit.
All profits in excess of the Allowable Profit shall be deducted by the Monitoring Agent
from the amount being held in escrow and paid by the Monitoring Agent into the
Municipality's Low and Moderate Income Housing Fund. In the event that the
Developer decides to purchase the sixth market-rate unit, then, prior to the issuance of
a Certificate of Occupancy for said unit, the Developer shall deposit with the Monitoring
Agent a sum which is the average purchase price of the five (5) units that were
previously sold, said sum to be placed into escrow under the same terms and
conditions described above. The Monitoring Agent is empowered to review and
challenge the purchase price for the sixth market-rate unit if in his opinion it deviates
from the sale prices for the other five units.
3. Upon issuance of final Certificates of Occupancy for all of the units, the
Developer shall pay for and deliver to the Municipality and the Monitoring Agent, a full
compilation of total development costs (net of related-party expenses) and total
revenues on a federal income tax basis, prepared and certified by a certified public
accountant acceptable to the monitoring agent (the "Certified Cost and Income
Statement").
4. If all units at the Project have not been sold as of the date the Certified
Cost and Income Statement is delivered to the Municipality, the Developer shall at least
once every ninety (90) days thereafter, until such time as all of the units are sold,
'deliver to the Municipality an updated Certified Cost and Income Statement.
5. For as long as the Developer complies with the requirements of this
Section, the Developer shall be deemed to be a Limited Dividend Organization within
[2001-0060/regagrmt82302] 7
the meaning of the Act.
6. At any point prior to the sale of all the Units, but at least annually, the
Monitoring Agent, at its sole discretion, may require the Developer to provide the
Monitoring Agent with an audited Certified Cost and Income Statement prepared and
certified by a certified public accountant acceptable to the Monitoring Agent (the
"Certified Cost and Income Statement") and any other financial information regarding
the project that will assist the Monitoring Agent in fulfilling its responsibilities.
7. Remedies to enforce the requirements of the Limited Dividend
Organization Criteria shall include, but not be limited to, the refusal to issue an
Occupancy Permit or Permits, the transfer of the funds being held in escrow to the
Municipality's Low and Moderate Income Housing Fund and the execution of a lien on
any property still being held by the Developer.
IV. MUNICIPALITY COVENANTS AND RESPONSIBILITIES.
A. The Municipality agrees that all amounts constituting Excess Profit,
Windfall Amount, or any amount paid to the Municipality by the Developer or the Unit
Seller pursuant to the provisions of this Agreement shall be deposited in the
Municipality's Affordable Housing Fund. This Affordable Housing Fund shall be
deemed to be a fund for gifts for specific purposes under M.G.L. c. 44, §53A and shall
be held in an interest-bearing account used from time-to-time by the Municipality with
approval of the Municipality's Housing Committee or any successor committee whose
purpose is to advise the Municipality on affordable housing issues, for the purpose of
reducing the cost of the Project's Affordable Units for Eligible Purchasers, and for the
purposes of encouraging, creating, or subsidizing the construction or rehabilitation of
housing for Low to Moderate Income individuals and families elsewhere in the
Municipality.
B. The Municipality, and any delegate to which the Municipality might assign
its rights and duties under this Agreement, agrees that it will use such means as
provided in this Agreement and the attached Deed Rider to maintain the affordability of
the Units.
V. MONITORING AGENT COVENANTS AND RESPONSIBILITIES.
A. MONITORING AGENT.
1. The Barnstable Housing Authority agrees to perform the
duties of Monitoring Agent and to adhere to the responsibilities as defined in the
Monitoring Services Agreement entered between the Barnstable Housing Authority and
the Developer (attached hereto as Exhibit "C" and made a part of this Agreement). In
the event that the affordable units are to be sold to eligible purchasers then the Cape
Homeownership Center or any successor in interest shall be responsible for conducting
a lottery to select homeowners.
[2 0 01-006 0/reg ag rmt82302] 8
i • r
2. Within sixty (60) days after delivery by the Developer to
the Barnstable Housing Authority ("BHA") of the Certified Cost and Income Statement
(see Section III, subsection E, paragraph 2 above), the BHA will submit to the
Municipality its figures and analysis based upon the Statement (in a form agreed to by
the Municipality).
VI. RECORDING OF AGREEMENT.
Upon execution, the Developer shall immediately cause.this Agreement and any
amendments hereto to be recorded with the Barnstable County Registry of Deeds or, if
the Project consists in whole or in part of registered land, file this Agreement and any
amendments hereto with the Registry District of the Barnstable Land Court (collectively
hereinafter the "Registry of Deeds"), and the Developer shall pay all fees and charges
incurred in connection therewith. Upon recording or filing, as applicable, the Developer
shall immediately transmit to the Monitoring Agent and the Municipality evidence of
such recording or filing including the date filed thereof, and the instrument, book, page
or registration number of the Agreement.
VII. LAW GOVERNING AGREEMENT.
This Agreement shall be governed by the laws of the Commonwealth of Massachusetts.
Any amendments to this Agreement must be in writing and executed by all of the
parties hereto. The invalidity of any clause, part or provision of this Agreement shall not
affect the validity of the remaining portions hereof.
VIII. NOTICE.
All notices to be given pursuant to this Agreement shall be in writing and shall be
deemed given when delivered by hand or when mailed by certified or registered mail,
postage prepaid, return receipt requested, to the parties hereto at the addresses set
forth below, or to such other place as a party may from time-to-time designate by
written notice.
IX. HOLD HARMLESS.
The Developer hereby agrees to indemnify and hold harmless the Municipality and/or
its delegate from any and all actions or inactions by the Developer, its agents, servants
or employees which result in claims made against the Municipality and/or its delegate,
including but not limited to, awards, judgments, out-of-pocket expenses and attorney's
fees necessitated by such actions.
X. ENTIRE UNDERSTANDING.
A. This Agreement and its constituent exhibits marked "A", "B" and "C",
o hereby made part of the Agreement, shall constitute the entire understanding between
the parties and any amendments•or changes hereto must be in writing, executed by the
parties, and appended to this document.
i2001-0060/regagrmt82302J 9
i
( k i
B. This Agreement and all of the covenants, agreements and restrictions
contained herein shall be deemed to be for the public purpose of providing safe
affordable housing and shall be deemed to be, and by these presents are, granted by
the Owner to run in perpetuity in favor of and be held by the Municipality as any other
permanent restriction held by a governmental body as that term is used in MGL 184,
Sections 26 and 31 which shall run with the land described in Exhibit "A" hereto
annexed and shall be binding upon the Owner and all successors in title. This
Agreement is made for the benefit of the Municipality and the Municipality shall be
deemed to be the holder of the restriction created by this Agreement. The Municipality
has determined that the acquiring of such a restriction is in the public interest. The
Municipality shall not be subject to the defense of lack of privity of estate. The
covenants and restrictions contained in this Agreement shall be deemed to affect the
title to the property described in Exhibit "A".
XI. TERM OF AGREEMENT.
The term of this Agreement shall be perpetual.
XII. SUCCESSORS AND ASSIGNS.
A. The Parties to this Agreement intend, declare, and covenant on behalf of
themselves and any successors and assigns their rights and duties as defined in this
Regulatory Agreement and the attached Monitoring Agreement.
B. The Developer intends, declares, and covenants on behalf of itself and its
successors and assigns that (i) this Agreement and the covenants, agreements and
restrictions contained herein shall be and are covenants running with the land,
encumbering the Project for the term of this Agreement, and are binding upon the
Developer's successors in title; (ii) are not merely personal covenants of the Developer;
and, (iii) shall bind the Developer, its successors and assigns and inure to the benefit of
the Municipality and its successors and assigns for the term of the Agreement.
XIII. DEFAULT.
If any default, violation or breach by the Developer of this Agreement is not cured to the
satisfaction of the Monitoring Agent within thirty (30) days after notice to the Developer
thereof, then the Monitoring Agent may send notification to the Municipality that the
Developer is in violation of the terms and conditions hereof. The Municipality may
exercise any remedy available to it. The Developer will pay all costs and expenses,
including legal fees; incurred by the Monitoring Agent in enforcing this Agreement.
XIV MORTGAGEE CONSENT,
The Developer represents and warrants that it has obtained the consent of all existing
mortgagees of the Project to the execution and recording of this Agreement and to the
terms and conditions hereof and that all such mortgagees have executed a consent to
this Agreement.
[2001-0060/regagrmt82302] 10
I
IN WITNESS WHEREOF, we hereunto set our hands and seals this 5th
day of September , 2002.
CHATHAM REAL PROPERTIES, INC., the Developer
By. 0�-
Name (signature):
Printed: Aaron Bornstein
Title: President & Treasurer
TOWN OF BA -NS-T,AB,-E, the Municipality
By:
Name: ohn C. Klimm, Town Manager
CAPE COD BANK AND TRUST CO.
g • � --
Y
Name (signa ure):
Printed: A . v� Vo b-C B C
Title:
BARNSTABLE HOUSING AUTHORITY,
Monitoring Agent
By: Cie ze-
Name: Thomas K.. nch, Director
APPROVED AS TO FORM:
Aa.
obert D. Smith, Town Attorney
Town of Barnst ble
Date: , 2002.
[2001-0060/regagrmt82302] l l
I
COMMONWEALTH OF MASSACHUSETTS
County of Barnstable) ss: Date: September q t h ; 2002.
Then personally appeared the above-named Aaron Bornstein , the President
and mrPas„r4 Chatham Real Properties, Inc., the Developer, who acknowledged
the foregoing instrument to be his/her free act and deed, before me.
L6nora D.Carr
2�Cr2�s -'L.:l-� �-- Notary Public
Name: Notary Public My Co mm is
v/
My commission expires: �% o
COMMONWEALTH OF MASSACHUSETTS
County of Barnstable) ss: Date: September , 2002.
Then personally appeared the above-named I , the
,,,e. of Cape Cod Bank and Trust Company, the Bank, who
acknowledged the foregoing instrument to be his/her free act and deed, before me.
� -�
Name: 4VNotary Public
My commission expires: DEEK)PL BRYANT, Notary Public
*Q0111*6kx1 Expires January 28,2006
COMMONWEALTH OF MASSACHUSETTS
County of Barnstable) ss Date: September , 2002.
Then personally appeared the above-named John C. Klimm, the Town Manager of
the Town of Barnstable, the Municipality, who acknowledged the foregoing
instrument to be his free act and deed before me. Unde R.Wheelden,Notary PubRe
Commonwealth of M chus�td
�l C r mit lon Ex ices 2/23/2007
Na Notary Public
My commission expires:
COMMONWEALTH OF MASSACHUSETTS
County of Barnstable) ss: Date: September � , 2002.
Then personally appeared the above-named Thomas K. Lynch, Director of the
Barnstable Housing Authority, the Monitoring Agent, who acknowledged the
foregoing instrument to be his free act Ind deed, before me.
Name: Notary Public
My commission expires: 2_00c'
[2001-0060/regagrmt82302] 12
EXHIBIT A
The Project Locus
Three parcels of land located in said Hyannisport, bounded and described as follows:
PARCEL ONE
All that certain lot, piece or parcel of land, together with the improvements erected
thereon, situate, lying and being on the Easterly side of Scudder Avenue, so-called, in the
Village of Hyannisport, bounded and described as follows:
WESTERLY by the town road leading to the harbor (Scudder Avenue);
NORTHERLY by the land and orchard formerly of Eli Hinckley;
EASTERLY and
SOUTHERLY by land formerly of Desire Scudder;
and is ten (10) rods long north and south and eight (8) rods wide east and west and
contains eighty (80) rods.
PARCEL TWO
All that certain lot, piece or parcel of land, together with the improvements erected
thereon, situate, lying and being on the Northerly side of Lake Avenue, so-called, in the
Village of Hyannisport, bounded and described as follows:
Beginning at the northwesterly corner of said lot, piece or parcel at the northeasterly
corner or land now or formerly of Elijah H. Phinney known as the "School House Lot"
(Lot No. 1 and land now or formerly of Frank McCabe);
THENCE running South 88' East, by said land now or formerly of McCabe
to the southeasterly corner of said land now or formerly of
McCabe, marked by an iron pipe set in the ground;
THENCE North 62'East to the end of the "School House Pond", so-called;
THENCE in a southerly and easterly direction by the edge of said Pond, to
the division line between Lots 96 and 97 in Section 3 as shown on
a "Plan of Seashore Lots at Hyannisport, Mass., belonging to
Hyannis Land Co., at Hyannis, Barnstable County, Mass., 1872, R.
Cook, Surveyor", recorded with Barnstable County Registry of
Deeds, Book 111, Page 30, extended to the Pond. .
f
THENCE southerly by said extended dividing line, to "Lake Avenue" as
shown on said plan;
THENCE westerly by said Lake Avenue to the southeasterly corner of land
now or formerly of Elijah H. Phinney, known as the "School House
Lot" as aforesaid;
THENCE northerly by said land now or formerly of Elijah H. Phinney to the
point of beginning.
PARCEL THREE
All that certain lot, piece or parcel of land, together with the improvements erected
thereon, situate, lying and being in the Village of Hyannisport, bounded and described as
follows:
WESTERLY by the east side of Scudder Avenue, seventy (70) feet;
NORTHERLY by land now or formerly of Harriet C. Carpenter, about one
hundred twenty- five (125) feet;
EASTERLY by land now or formerly of said CarTenter, about seventy (70) feet;
SOUTHERLY by land now or formerly of E. Henry Phinney, about one hundred
twenty-five (125) feet.
Containing an area of 115th of an acre, more or less.
For title see deed recorded at Book 11125, Page 75 in the Barnstable County Registry of
Deeds.
[2001-0060/deedinfo] 2
EXHIBIT B
DEED RIDER
for
FHLBB New England Fund
(Annexed to and made a part of that certain Deed (the "Deed") from
Chatham Real Properties, Inc., ("Grantor") to
(Grantee")
dated , 2002
WITNESSETH:
WHEREAS, the Developer of the Land has-received a comprehensive permit under
Chapter 40B of M.G.L. for the purpose of constructing School House Pond Condominiums;
eight (8) residential units (the"Project") comprised of six (6) units to be sold by the Project
Developer at market rates and two (2) units to be sold by the Project Developer to either the
Barnstable Housing Authority for rental to households with low and moderate incomes or to
an eligible low or moderate income purchaser, in accordance with the terms and provisions of
the Regulatory Agreement by and between the Project Developer and the Member Bank, as
part of the New England Fund Program (the "Regulatory Agreement"); and,
WHEREAS, the Municipality has determined that the rights and restrictions granted
herein to the Municipality serve the public's interest in the creation and retention of affordable
housing for persons and families of low and moderate income and in the restricting of the
rental and resale price of property in order to assure its affordability by future low and
moderate income purchasers; and,
WHEREAS, pursuant to the Regulatory Agreement for this Project, if the Barnstable
Housing Authority purchases the affordable units, the two Affordable Units shall be rented to
a household with a maximum income of 80% of Area Median Income or less of the Area
Median Income (AMI) of Barnstable-Yarmouth Metropolitan Statistical Area (MSA) and that
rent (including utilities) shall not exceed the rents established by the Department of Housing
and Urban Development (HUD) for a household whose income is 80% of the median income
of Barnstable-Yarmouth Metropolitan Statistical Area. In the event that utilities are separately
metered, the utility allowance established by the Barnstable Housing Authority shall be
deducted from HUD's rent level; and,
WHEREAS, pursuant to the Regulatory Agreement, in the event the Barnstable
Housing Authority decides not to purchase the two affordable units or decides in the future to
sell the two (2) affordable units, eligible purchasers, such as the Grantee, shall be given the
opportunity to purchase an affordable unit at a discount of the property's appraised fair
market value if the purchaser agrees to convey the property on resale to an eligible
purchaser located by the Municipality or, to the Municipality, for a "Maximum Resale Price".
The Maximum Resale Price shall be determined by dividing the Initial Sales Price by the
applicable area median income published by HUD, adjusted for household size at the time of
resale, as determined by the Monitoring Agent (as specified in the Regulatory Agreement) or,
if there is no eligible purchaser who can qualify to purchase the property at the normal
Maximum Resale Price, then to an eligible purchaser for a lesser, modified Maximum Resale
[2001-00601deedrider1] 1
Price equal to the amount for which an eligible purchaser can qualify [See also §2(e), below];
and,
WHEREAS, the Grantor and the Grantee are participating in the NEF Program, and in
accordance with the NEF Program, the Grantor is conveying that certain real property more
particularly described in the Deed ("Property") to the Grantee at a consideration which is less
than the appraised value of the Property;
NOW THEREFORE, as further consideration from the Grantee to the Grantor and the
Municipality for the conveyance of the Property at a discount in accordance with the
Regulatory Agreement, the Grantee, his heirs, successors and assigns, hereby agrees that
the Property shall be subject to the following rights and restrictions which are hereby imposed
for the benefit of, and shall be enforceable by, the Grantor's assignees and designees, or the
Monitoring Agent, or the Municipality, acting by and through its Chief Elected Official.
1. Right of First Refusal: 4
(a) When the Grantee or any successor in title to the Grantee shall desire to sell,
dispose of or otherwise convey the Property, or any portion thereof, the Grantee shall first
notify the Monitoring Agent and subsequently the Municipality in writing of the Grantee's
intention to so convey the property (the "Notice"). The Monitoring Agent will reply in writing
within thirty (30) days of receipt of the notification to sell indicating the Maximum Resale
Price. Within thirty (30) days of the giving of the Notice by the Grantee, the Municipality shall
notify the Grantee in writing as to whether the Municipality is proceeding to locate an eligible
purchaser of the Property or the Municipality shall exercise its right of first refusal to purchase
the Property (the "Municipality's Notice"). For the purpose of this Deed Rider, an "eligible
purchaser" shall mean a purchaser who satisfies the criteria set forth in the Regulatory
Agreement, and who, if located by the Municipality, is ready and willing to purchase the
Property within one hundred eighty (180) days after the Grantee gives the Notice.
(b) In the event that the Municipality's Notice states that the Municipality does not
intend to proceed to locate an eligible purchaser and that the Municipality does not intend to
exercise its right of first refusal to purchase the Property, or the Municipality fails to give the
Municipality's Notice within thirty (30) days, the Grantee must use diligent efforts to find an
eligible purchaser within a one hundred eighty (180) day period from the date the Property is
put on the market, as determined by the date of the first advertisement for sale, as set forth
below. The term "diligent efforts" as used herein shall mean: (1) the placement of an
advertisement in the real estate section of at least one newspaper of general circulation for a
period of three (3) consecutive weeks which sets forth a customary description of the unit for
sale, the Maximum Resale Price, Grantee's telephone number, and the phrase: "Sale of unit
subject to certain guidelines and restrictions with respect to the maintenance and retention of
affordable housing for households of low and moderate income"; and, (2) the receipt of
satisfactory evidence that the new purchaser qualifies as an eligible purchaser. If the
Grantee is unable to Locate an eligible purchaser within one hundred eighty (180) days from
the date the Property is put on the market, the seller can sell to any person, regardless of
his/her income, at the Maximum Resale Price. The purchaser would be required to execute a
Deed Rider and, upon resale, be subject to the restrictions as described above
(c) In the event the Municipality, within said thirty (30) day period, notifies the
Grantee that the Municipality is proceeding to locate an eligible purchaser or that the
[2001-00601deedriderl] 2
Municipality shall exercise the Municipality's right of first refusal to purchase the Property, the
Municipality may locate an eligible purchaser, who shall purchase the Property at the
Maximum Resale Price subject to the Deed Rider, within one hundred eighty (180) days of
the date that the Notice is given, or the Municipality may purchase the Property itself at the
Maximum Resale Price with one hundred eighty (180) days of the date that the Notice is
given. If more than one eligible purchaser is located by the Municipality, the Municipality
shall conduct a lottery or other like procedure to determine which eligible purchaser shall be
entitled to the conveyance of the Property.
(d) If an eligible ,purchaser is selected to purchase the Property, or if the
Municipality elects to purchase the Property, the Property shall be conveyed by the Grantee
to such eligible purchaser or to the Municipality as the case may be, by a good and sufficient
quitclaim deed conveying.a good and clear record and marketable title to the Property free
from all encumbrances, except: (i) such taxes for the then current year as are not due and
payable on the date of delivery of the deed; (ii) any lien for municipal betterments assessed
after the date of the Notice; (iii) provisions of local building and zoning laws; (iv) all
easements, restrictions, covenants and agreements of record specified in the Deed from the
Grantor to Grantee; (v) a Regulatory Agreement with the Project Developer dated
and recorded with the Barnstable Registry of Deeds in Book ,
Page , the and
Agreement"). The Regulatory Agreement cannot be
amended without the consent of the Monitoring Agent; (vi) such additional easements,
restrictions, covenants and agreements of record as the Municipality and the Monitoring
Agent consents to, such consent not to be unreasonably withheld or delayed; and, (vii) in the
event that the Property is conveyed to an eligible purchaser, a Deed Rider satisfactory in
form and substance to the Monitoring Agent which the Grantee hereby agrees to annex to
said deed.
(e) Said deed shall be delivered and the purchase price paid (the "Closing") at the.
Barnstable Registry of Deeds in the County where the Property is located, or at the option of
the eligible purchaser (or the Municipality, as the case may be, if the Municipality is
purchasing the Property), exercised by written notice to the Grantee at least five (5) days
prior to the delivery of the deed, at such other place as the eligible purchaser (of the
Municipality, as the case may be, if the Municipality is purchasing the Property) may
designate in said notice. The Closing shall occur at such time and on such date as shall be
specified in a written notice from the eligible purchaser (or the Municipality, as the case may
be, if the Municipality is purchasing the Property) to the Grantee, which date shall be at least
five (5) days after the date on which such notice is given, and if the eligible purchaser is a
purchaser located by the Municipality, or if the Municipality is purchasing the Property, no
later than sixty (60) days after the Notice is given by the Grantee.
(f) To enable Grantee to make conveyance as herein provided, Grantee may if it
so desires at the time of delivery of the deed, use the purchase money or any portion thereof
to clear the title of any or all encumbrances or interests; all instruments so procured to be
recorded simultaneously with.the delivery of said deed.
(g) Water and sewer charges and taxes for the then current tax period shall be
apportioned and fuel value and any common area charges or association fees, if any, shall
be adjusted as of the date of Closing and the net amount thereof shall be added to or
deducted from, as the case may be, .the purchase price payable by the eligible purchaser or
by the Municipality.
[2001-00601deedrider1] 3
(h) Full possession of the Property free from all occupants is to be delivered at the
time of the Closing, the Property to be then in the same condition as it is in on the date of the
Grantee's notice, reasonable wear and tear only excepted.
(i) If Grantee shall be unable to give title or to make conveyance as above
stipulated, or if any change of condition in the Property not included in the above exception
shall occur, then the Closing shall be extended for up to thirty (30) days and Grantee shall
remove any defect in title or to restore the Property to the condition hereby provided for. The
Grantee shall use its best efforts to remove any such defects in the title whether voluntary or
involuntary and to restore the Property to the extent permitted by insurance proceeds or
condemnation award. The eligible purchaser (or the Municipality, as the case may be, if the
Municipality is purchasing the Property) shall have the election, at either the original or any
extended time for performance, to accept such title as the Grantee can deliver to the Property
in its then condition and to pay, therefore, the purchase price without deduction, in which
case the Grantee shall convey such title, except that in the event of such conveyance in
accordance with the provisions of this clause, if the Property shall have been taken by a
public authority, then the Grantee shall, unless the Grantee has previously restored the
Property to its former condition, either:
(i) pay over or assign to the eligible purchaser or the Municipality, as the
case may be, on delivery of the deed, all amounts recovered or
recoverable on account of such insurance or condemnation award less
any amounts reasonable expended by the Grantee for the partial
restoration, or
(ii) if a holder of a mortgage on the Property shall not permit the insurance
'- proceeds or the condemnation award or part thereof to be used to
restore the Property to its former condition or to be so paid over or
assigned, give to the eligible purchaser or to the Municipality, as the
case may be, a credit against the purchase price, on delivery of the
deed, equal to said amounts so retained by the holder of the said
mortgage less any amounts reasonably expended by the Grantee for any
partial restoration.
2. Rental to Persons of Low and Moderate Incomes
If the affordable units are owned by the Barnstable Housing Authority, said affordable
units shall be rented for a period of not less than one year to a household with a maximum
income of 80% of Area Median Income or less of the Area Median Income (AMI) of
Barnstable-Yarmouth Metropolitan Statistical Area (MSA) and that rent (including utilities)
shall not exceed the rents established b the Department of Housing and Urban
Y p g
Development (HUD) for a household whose income is 80% of the median income of
Barnstable-Yarmouth Metropolitan Statistical Area. In the event that utilities are separately
metered, the utility allowance established by the Barnstable Housing Authority shall be
deducted from HUD's rent level.
12001-00601deedrider1] 4
3. Resale and Transfer Restrictions.
Except as otherwise stated herein, the Property or any interest therein, shall not at any
time be sold by the Grantee, the Grantee's successors and assigns, and no attempted sale
shall be valid, unless:
(a) the aggregate value of all consideration and payments of every kind given or
paid by the eligible purchaser (as located and defined in accordance with Section 1
above) or the Municipality; as the case may be, to the then-owner of the Property for
and in connection with the transfer of such Property, is equal to or less than the
Maximum Resale Price for the Property, and,
(i) if the Property is conveyed to an eligible purchaser, a certificate
(the "Eligible Purchaser Certificate") is obtained and recorded, signed and
acknowledged by the Monitoring Agent which.Eligible Purchaser Certificate
refers to the Property, the Grantee, the eligible purchaser thereof, and the
Maximum Resale Price therefor, and states that the proposed conveyance, sale
or transfer of the Property to the eligible purchaser is in compliance with this
Deed Rider and the Regulatory Agreement, and there is also recorded a new
Deed Rider executed by the eligible purchaser which new Deed Rider the
Eligible Purchaser Certificate certifies is satisfactory in form and substance to
the Monitoring Agent;
(ii) if the Property is conveyed to the Municipality, a Certificate (the
"Municipal Purchaser Certificate") is obtained from the Monitoring Agent and
signed and acknowledged by the Municipality and the Monitoring Agent and
recorded with the Registry of Deeds, which Municipal Purchaser Certificate
refers to the Property, the Grantee, the Municipality, and the Maximum Resale
Price for the Property and states that the proposed conveyance, sale or transfer
of the Property to the Municipality is in compliance with the rights, restrictions,
covenants and agreements contained in this Deed Rider and there is also
recorded a new Deed Rider which Deed Rider is satisfactory in form and
substance to the Monitoring Agent; or,
(iii) if the Property is conveyed to a third party in accordance with
Section 1, the Monitoring Agent execute and deliver the Compliance Certificate
in accordance with Section 1.
(b) Any good faith purchaser of the Property, any lender or other party taking a
security interest in such Property and any other third party may rely upon a Compliance
Certificate or an Eligible Purchaser Certificate or a Municipal Purchaser Certificate referring
to the Property as conclusive evidence of the matters stated therein and may record such
Certificate in connection with conveyance of the Property, provided, in the case of an Eligible
Purchaser Certificate and a Municipal Purchaser Certificate the consideration recited in the
deed or other instrument conveying the Property upon such resale shall not be greater than
.the consideration stated in the Eligible Purchaser Certificate or the Municipal Purchaser ,
Certificate as the case may be. If the Property is conveyed to the Municipality, any future
sale of the Property by the Municipality shall be subject to the Regulatory Agreement and the
Deed from the Municipality shall contain a Deed Rider in form and substance satisfactory to
[2001-00601deedrider1 j 5
the Monitoring Agent together with an Eligible Purchaser Certificate from the Monitoring
Agent.
c
( ) Within ten (10) days of the closing of the conveyance of the Pro ert from
Y p Y
Grantor to Grantee, the Grantee shall deliver to the Monitoring Agent and to the Municipality
a true and certified copy of the Deed of the Property, together with information as to the place
of recording thereof in the public records. Failure of the Grantee or Grantee's successors or
assigns to comply with the preceding sentence shall not affect the validity of such
conveyance.
(d) Notwithstanding anything to the contrary contained in this Deed Rider, the
Maximum Resale Price shall not be less than the purchase price which the Grantee paid for
the Property plus the costs of approved capital improvements and marketing expenses, as
determined by the Monitoring Agent.
(e) The Grantee understands and agrees that nothing in this Deed Rider or the
Regulatory Agreement in any way constitutes a promise or guarantee by the Grantor,
Monitoring Agent or Municipality that the Grantee shall actually receive the Maximum Resale
Price for the Property or any other price for the Property.
4. Restrictions Against Leasing and Junior Encumbrances.
The Property shall not be leased, refinanced, encumbered (voluntarily or otherwise) or
mortgaged without the prior written consent of the Municipality and the Monitoring Agent,
provided, however, that this provision shall not apply to a first mortgage granted in connection
with this conveyance, except if the Barnstable Housing purchases either or both affordable
units, it shall be required to rent said unit(s) to an eligible tenant(s) at an affordable rent, as
otherwise provided herein. Any rents, profits, or proceeds from any transaction described in
the last preceding sentence which transaction has not received the prior written consent of
the Monitoring Agent shall be paid to and be the property of the Municipality. In the event
that the Monitoring Agent, in the exercise of its absolute discretion, consents to any such
lease, refinancing, encumbrance or mortgage, it shall be a condition to such consent that all
rents, profits or proceeds from such transaction which exceeds the carrying costs of the
Property as determined by the Monitoring Agent in their sole discretion shall be paid to and
be the property of the Municipality. Notwithstanding the restrictions outlined in the paragraph
above, any Property purchased by the Municipality, under its Right of First Refusal, may be
rented by the Municipality, at its discretion, so long as the income limits for the renter
household meet the income requirements as defined in the Regulatory Agreement and that
the rent charged is consistent with relevant guidelines of the Department of Housing and
Urban Development (HUD) or any successor agency.
5. Covenants to Run With the Property.
(a) The Grantor and the Grantee, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, hereby grant and assign to the Municipality, the
Municipality's agents, successors, designees and assigns the right of first refusal to purchase
the Property as set forth herein, and to the Monitoring Agent and the Municipality the right to
enforce the rights and restrictions, covenants and agreements set forth in this Deed Rider.
The Grantor and the Grantee hereby grant to the Monitoring Agent and the Municipality the
right to enter upon the Property for the purpose of enforcing any and all of the restrictions,
[2001-00601deedriderl] 6
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covenants and agreements herein contained, and of taking all actions with respect to the
Property which the Monitoring Agent and/or Municipality may determine to be necessary or
appropriate, with or without court order, to prevent, remedy or abate any violation of the
restric
tions, covenants and agreements set forth herein. The rights hereby granted to the
Monitoring Agent and the Municipality shall be in addition to and not in limitation of any other
rights and remedies available to the Grantor or the Monitoring Agent or to the Municipality for
enforcement of the restrictions, rights, covenants and agreements set forth in this Deed
Rider. It is intended and agreed that all of the agreements, covenants, rights and restrictions
set forth above shall be deemed to be covenants running with the Property and shall be
binding upon and enforceable against the Grantee, the Grantee's successors and assigns
and any party holding title to the Property for the benefit of and enforceable by the Monitoring
Agent and/or the Municipality, the Monitoring Agent and/or Municipality's agents, successors,
designees and assigns.
(b) This Deed Rider and all of the agreements, restrictions, rights and covenants
contained herein shall be deemed to be for the public purpose of providing safe affordable
housing and shall be deemed to be, and by these presents are, granted by the Owner to run
in perpetuity in favor of and be held by the Municipality as any other permanent restriction
held by a governmental body as that term is used in M.G.L.C. Chap. 184, Sec. 26 and Sec.
31 which shall run with the land described in the description to the subject locus marked as
Exhibit "A" hereto annexed and shall be binding upon the Owner and all successors in title.
This Agreement is made for the benefit of the Municipality and the Municipality shall be
deemed to be the holder of the restriction created by this Agreement. The Municipality has
determined that the acquiring of such a restriction is in the public interest. The Municipality
shall not be subject to the defense of lack of privity of estate. The covenants and restrictions
contained in this Agreement shall be deemed to affect the title to the property described in
Exhibit "A".
(c) The Grantee .intends, declares and covenants on behalf of itself and its
successors and assigns (i) that this Deed Rider and the covenants, agreements, rights and
restrictions contained herein shall be and are covenants running with the land, encumbering
the Property for the term of this Deed Rider, and are binding upon the Grantee's successors
in title, (ii) are not merely personal covenants of the Grantee, and (iii) shall bind the Grantee,
its successors and assigns and enure to the benefit of the Municipality and their successors
and assigns for the term of the Deed Rider. Grantee hereby agrees that any and all
requirements of the laws of the Commonwealth of Massachusetts to be satisfied in order for
the provisions of this Deed Rider to constitute restrictions and covenants running with the
land shall be deemed to be satisfied in full and that any requirements of privity of estate are
also deemed to be satisfied in full.
(d) The Monitoring Agent shall be entitled to a fee of three (3%) percent of the
established maximum sales price of the unit to the Municipality or an eligible purchaser for
the services performed according to the Monitoring .Services Agreement (and referenced in
the Regulatory Agreement). This fee shall be initially paid by the Developer and thereafter, at
the time of any resale, it shall be paid by Grantee as a closing cost at the time of closing.
(e) Without limitation on any other rights or remedies of the Grantor, the Monitoring
Agent, the Municipality, their agents, successors, designees and assigns, any sale or other
transfer or conveyance of the Property in violation of the provisions of this Deed Rider, shall,
to the maximum extent permitted by law, be voidable by the Municipality or the Monitoring
[2001-006 Need rider1] 7
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Agent, their agents, successors, designees and assigns by suit in equity to enforce such
rights, restrictions, covenants, and agreements.
i
6. Notice.
Any notices, demands or requests that may be given under this Deed Rider shall be
sufficiently served if given in writing and delivered by hand or mailed by certified or registered
mail, postage prepaid, return receipt requested, to the parties hereto at the addresses set
forth below, or such other addresses as may be specified by any party by such notice.
Municipality: Barnstable Town Manager, 367 Main Street, Hyannis, MA 02601
Grantor: 297 North Street, Hyannis, MA 02601
Grantee:
Monitoring Agent: Barnstable Housing Authority, 146 South Street, Hyannis, MA 02601.
Any such notice, demand or request shall be deemed to have been given on the day it is
hand-delivered or mailed as outlined above.
7. Further Assurances.
The Grantee agrees from time-to-time, as may be reasonably required by the
Monitoring Agent or the Municipality, to furnish the Monitoring Agent and the Municipality with
a written statement, signed and, if requested, acknowledged, setting forth the condition and
occupancy of the Property, information concerning the resale of the Property and all other
information pertaining to the.Property or the Grantee's eligibility for and conformance with the
Regulatory Agreement for this Project.
8. Waiver.
Nothing contained herein shall limit the rights of the Monitoring Agent and/or the
Municipality to release or waive, from time to time, in whole or in part, any of the rights,
restrictions, covenants or agreements contained herein with respect to the Property. Any
such release or waiver must be made in writing and must be executed by the Monitoring
Agent and/or the Municipality or designee. .
9. Severability.
If any provisions hereof or the application thereof to any person or circumstance shall
come, to any extent, to be invalid or unenforceable, the remainder hereof, or the application
of such provision to the persons or circumstances other than those as to which it is held
invalid or unenforceable, shall not be affected thereby, and each provision hereof shall be
valid and enforced to the fullest extent permitted by law.
10. Responsibility of the Monitoring Agent.
The Monitoring Agent shall not be held liable for any action taken or omitted under this
Agreement so long as it shall have acted in good faith and without gross negligence.
[2001-0060Weedriderl I 8
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11. Indemnity.
The Developer agrees to indemnify and hold harmless the Monitoring Agent against all
dama
ges, costs and liabilities, includingreasonable attorne s fees asserted against the
Y � g
Monitoring Agent by reason of its relationship with the Project under this Agreement and not
involving the Monitoring Agent acting in bad faith and with gross negligence.
Executed as a sealed instrument this .--i+ day of August, 2002 .
Chatham Real Properties, Inc., Grantor:
BY: rt � 6---
Name: 111490/1) a0lW S!-6l/0 Signature
Title:
Grantee:
By:
Signature
Name:
Title:
TOWN OF BARNSTABL Municipality,
By:
John C. Klim own Manager, Town of Barnstable
BARNSTABLE HOUSING AUTHORITY,
u Monitoring Agent
Thomas K. Lynch, rector
APPROVED AS TO FORM:
r
Rcb6rt D. Smith, Ir6wn Attorney
Town of Barnstable
[2001-00601deedrider1) 9
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COMMONWEALTH OF MASSACHUSETTS
County of Barnstable, ss: Date: August , 2002.
Then personally appeared the above-named Aaron Bornstein , Presidentthe
& Treasurer of Chatham Real Properties, Inc., the Developer, who acknowledged the
foregoing instrument to be his/her free act and deed, before me.
r
`Name printed: L.-t�fn�<� C<4�ir" Notary Public
My commission expires:
COMMONWEALTH OF MASSACHUSETTS
r�ode
County of Barnstable, ss: Date: .
Then personally appeared the above-named John C. Klimm, the Town Manager of
the Town of Barnstable, the Municipality, who acknowledged the foregoing instrument to
be his free act and deed, before me.
LhXk R.Whestdonii,Notery
Commonwealth of M
Any Commission Expires 2/2V2007
Na Notary Public
My commission expires: aoo
COMMONWEALTH OF MASSACHUSETTS
�-
County of Barnstable, ss: Date: A s ,2-8a2:
Then personally appeared the above-named Thomas K. Lynch, Director of the
Barnstable Housing Authority, the Monitoring Agent, who acknowledged the foregoing
instrument to be his free act and deed, before me.
Name: - Notary Public
My commission expires: -1 2.-11 2_100
[2001-00601deedriderl] 10
EXHIBIT C
MONITORING SERVICES AGREEMENT
(FHLBB — NEW ENGLAND FUND)
For Ownership Projects
THIS AGREEMENT is made as of the - J 7 �z
day of August, 2002, by and
between Chatham Real Properties, Inc., a Massachusetts corporation, having an
address at 297 North Street, Hyannis, Massachusetts 02601 ("Developer"), and the
Town Manager of the Town of Barnstable, of 367 Main Street, Hyannis, MA 02601
(as the "Municipality"), and the Barnstable Housing Authority, of 146 South Street,
Hyannis, MA 02601 ("Monitoring Agent").
Background
A. The Federal Home Loan Bank of Boston FHLBB has agreed to provide a
subsidized advance (the "Subsidized Advance") under the New England Fund (the
"NEF") to Cape Cod Bank & Trust (the "Member") for the purpose of financing a project
containing residential housing units located at 537, 543 and 549 Scudder Avenue,
Hyannis, Massachusetts (the "Project").
B. The Project has received a comprehensive permit from the Zoning Board
of Appeals of the Town of Barnstable (the "Municipality") under Massachusetts General
Laws, Chapter 40B (the "Comprehensive Permit") and is subject to a regulatory
agreement (the "Regulatory Agreement") between the Member and the Developer of the
Project (the "Developer").
C. Pursuant to the guidelines of the NEF, the Comprehensive Permit and the
Regulatory Agreement, at least two (2) units in the Project (the "Affordable Units") are
required to be sold to households whose incomes do not exceed 80% of the median
income (adjusted for household size) for the BarnstableNarmouth Statistical Area. In
addition, the Affordable Units will be subject to deed riders governing resale (the
"Affordability Requirement") in perpetuity.
D. Pursuant to the NEF guidelines for comprehensive permit projects, the
Comprehensive Permit and the Regulatory Agreement, the Developer may not receive
profit in excess of 20% of total development costs defined in the Regulatory Agreement
(net of related party expenses),of the Project (the "Limited Dividend Requirement").
Related party expenses shall mean those that are above standard and customary for
the goods or service provided. For hard construction costs, "standard and customary"
shall be defined as equal to or less than the lowest of three (3) competitive bids for the
same service. For soft development costs (legal expenses, accounting, and marketing)
"standard and customary" shall be defined as no more then 10% above the approved
development pro forma submitted with the Comprehensive Permit application.
[2001-00601monitoring agreement schoolhouse] 1_
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E. Pursuant to requirements of the Regulatory Agreement and the
Comprehensive Permit, the Developer has agreed to retain the Monitoring Agent to
perform monitoring and enforcement services regarding compliance of the Project with
the Affordability Requirement and compliance of the Developer with the Limited
Dividend Requirement.
F. The Developer has agreed to provide his full cooperation to the Monitoring
Agent and to provide said Monitoring Agent any and all documents said Monitoring
Agent identifies as being necessary to fulfill its monitoring responsibilities
Agreement
For good and valuable consideration. the receipt and sufficiency of which are
hereby acknowledged, the parties hereto, intending to be legally bound hereby, agree
as follows.
I. The Developer Covenants and Responsibilities:
A. Maintenance of Complete and Accurate Records. The Developer shall
keep and preserve full, complete and true records at its office at 297 North Street,
Hyannis, Massachusetts, or at such other place or places as it shall designate by written
notice, provided that said change of location is acceptable to the Monitoring Agent.
Said records shall show all costs, expenditures, sales, receipts, assets and liabilities,
and profits and losses regarding the Project and shall be maintained in a manner and
form satisfactory to the Monitoring Agent and in accordance with sound and accepted
accounting principles. The Developer shall punctually make full and proper entries of all
business transacted regarding the Project.
B. Access to Books and Records: The Developer shall permit the
Monitoring Agent or it its representatives to examine or audit the records during normal
business hours and shall, upon the Monitoring Agent's request, explain the methods of
keeping the records.
C. Certified Cost and Income Statement: At the request of the Monitoring
Agent, but at least annually from the date of the execution of this agreement, the
Developer shall, at its sole expense, deliver to the Municipality and the Monitoring
Agent, a full compilation of total development costs (net of related-party expenses) and
total revenues on a federal income tax basis, prepared and certified by a certified public
accountant acceptable to the monitoring agent (the "Certified Cost and Income
Statement"). Related party expenses shall mean those that are above standard and
customary for the goods or service provided. For hard construction costs, "standard
and customary" shall be defined as equal to or less than the lowest of three (3)
competitive bids for the same service. For soft development costs (legal expenses,
accounting, and marketing) "standard and customary" shall be defined as no more than
1 Q% above the approved development pro forma submitted with the Comprehensive
Permit application.
[2001-00601monitoring agreement schoolhouse] 2
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D. Escrow of Proceeds from Sale of Sixth Market Rate Unit: The
Developer agrees to allow the Monitoring Agent to hold the gross proceeds from the
sale of the sixth market rate unit in escrow (or an amount equal to the average sales
price of the other five (5) units in the event that the Developer purchases the sixth unit)
in accordance with the terms of the Regulatory Agreement.
E. Excess Profits: The Developer agrees to pay all profits from the Project
in excess of the Allowable Profit (the "Excess Profit") to the Municipality to be deposited
into the Municipality's Low and Moderate Income Housing Fund to be used by the
Municipality for the purposes of encouraging, creating, or subsidizing the construction or
rehabilitation of affordable housing elsewhere in the Municipality.
F. Compliance with Terms of Comprehensive Permit and Regulatory
Agreement and Declaration of Restrictive Covenants: The Developer agrees to
comply fully with all the terms and conditions of the Comprehensive Permit and the
Regulatory Agreement and Declaration of Restrictive Covenants.
II. The Monitoring Agents Covenants and Responsibilities: The Monitoring
Agent shall monitor the compliance of the Project with the Affordability Requirements
and the compliance
ce of the Developer with the
Limit
ed Dividend Requirement, Including,
but not limited to, the following:
(A) Receipt of cost certifications for the Project from the developer (net of
related party expenses) and total revenue on a federal income tax basis
prepared and certified by a certified public accountant and acceptable to
the monitory agent (the "Certified Cost and Income Statement").
(B) Review of (x) the adequacy and completeness of cost certifications, and,
(y) (the substantive compliance of the Project with the Affordability
Requirement and of the Developer with the Limited Dividend Requirement.
(C) Retention of the proceeds of the sale of sixth unit in escrow ,,`
pending the satisfactory completion of(the "Certified Cost and Income
Statement") and a determination of whether there is an Excess Profit.
(D) Review of income certifications, deeds and deed riders with
respect to initial sales of Affordable Units.
(E) Monitoring of resales of Affordable Units for compliance with
the terms of the applicable deed riders and issuance of certifications, as
appropriate approving resales and the payment of recapture amounts.
(F) Preparation annually of a report (the "Annual Compliance Report")
to the Member and the Municipality on the compliance (x) of the
Developer with reporting requirements (so long as the Developer still owns
units in the Project), (y) of the Project with the Affordability Requirement
[2001-00601monitoring agreement schoolhouse] 3
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and (z) of the Developer with the Limited Dividend Requirement (so long
as the Developer still p owns units in the Project). The Annual Compliance
Report shall indicate the extent of noncompliance with the relevant
reporting and/or substantive requirements, describe efforts being made by
the Developer to remedy such noncompliance and, if appropriate,
recommend a demand by the Member for repayment of the loan to the
Developer or other possible enforcement action against the Developer.
(Gi) Circulation of an Annual Compliance Report to the Member (while its loan
is still outstanding) and to the Building Commissioner of the Town of
Barnstable within 120 days of the anniversary date of the signing of this
Monitoring Agreement.
The Monitoring Agent shall provide reasonable supplemental monitoring on its
own initiative in order to ensure, to the extent practicable, the compliance of the Project
and the Developer with the Affordability Requirement and the Limited Dividend
Requirement. The services hereunder shall not include any construction period
monitoring. The services hereunder shall include follow-up discussions with the
Developer, if appropriate, after an event of noncompliance.
III. Monitoring Services Fee. The Monitoring Agent shall be entitled to a fee of
three (3%) percent of the established maximum sales price of the each of the affordable
units for the services performed according to the terms of this Monitoring Services
Agreement. The initial monitoring fee shall be paid by the Developer prior to the
issuance of any building permits for the Project. Thereafter, with regard to subsequent
resales, the monitoring fee shall be paid by the Grantee at the time of the closing.
IV. Enforcement Services. In the event of violations of the substantive or reporting
requirements of the Regulatory Agreement or a failure by the Developer to take
appropriate actions to cure a default under the Regulatory Agreement, the Monitoring
Agent shall have the right, at its discretion, to take appropriate enforcement action
against the Developer, including, without limitation, notice to the FHLBB, to the
Municipality and/or to the Member or legal action to compel the Developer to comply
with the requirements of its Regulatory Agreement. The Regulatory Agreement
provides for payment by the Developer of fees and expenses (including legal fees) of
the Monitoring Agent in the event enforcement action is taken against the Developer
thereunder. The Monitoring Agent shall be entitled to seek recovery of its fees and
expenses incurred in enforcing.the Regulatory Agreement against the Developer and to
assert a lien on the Project or any portion thereof that is still owned by the Developer to
secure payment by the Developer of such fees and expenses. Additionally, the
Monitoring Agent is authorized to deduct its fees and expenses from any monies it is
holding in escrow.
In the event of a violation of the provisions of a deed rider, the Monitoring Agent
and the Municipality shall have the right, at their discretion, to take appropriate
enforcement action against the unit owner or the unit owner's successors in title,
[2001-00601monitoring agreement schoolhouse] 4
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including, without limitation, notice to the FHLBB, to the Municipality and/or to the
Member legal action to compel the unit owner to comply with the requirements of the
relevant deed rider. The form of deed rider will provide for payment by the unit owner of
fees and expenses (including legal fees) of the Monitoring Agent and the Municipality in
the event enforcement action is taken against the unit owner thereunder and will grant
to the Monitoring Agent and the Municipality a lien on the unit to secure Ipayment of
such fees and expenses. The Monitoring Agent and the Municipality shall be entitled to
seek recovery of its fees and expenses incurred in enforcing a deed rider against the
unit owner and to assert a lien on the relevant unit to secure payment by the unit owner
of such fees and expenses.
V. Term. The monitoring services are to be provided for the full term of the
Regulatory Agreement which is perpetuity.
VI. Indemnity. The Developer agrees to indemnify and hold harmless the
Monitoring Agent against all damages, costs and liabilities, including reasonable
attorneys' fees, asserted against the Monitoring Agent by reason of its relationship with
the Project under this Agreement and not involving the Monitoring Agent acting in bad
faith and with gross negligence.
VII. Applicable Law. This Agreement, and the application or interpretation hereof,
shall be governed by the laws of The Commonwealth of Massachusetts.
VIII. Bindinq Agreement. This Agreement shall be binding on the parties hereto,
their heirs, executors, personal representatives. successors and assigns.
IX. Headings. All paragraph headings in this Agreement are for convenience of
reference only and are not intended to qualify the meaning of the paragraph.
IN WITNESS WHEREOF, the parties hereto have caused this Monitoring
Services Agreement to be duly executed on this err day of August , 2002.
CHATHAM REAL PROPERTIES, INC., the Developer
B :
Y 6
Name: OnJ ao(,AA 77�
Title:, rX69/ �T' l
TOWN OF BARNSTA E, the Municipality
By:
Name: Joh C. Klimm, Town Manager
I
[2001-00601monitoring agreement schoolhouse] 5
Yy
.. v
CONDOMINIUM MASTER DEED /
SCHOOLHOUSE POND CONDOMINIUM _ (� �
537—549 SCUDDER AVENUE,HYANNIS,MASSACHUSETTS7
The undersigned, CHATHAM REAL PROPERTIES, INC., a Massachusetts Corporation having a
usual place of business at 297 North Street, Hyannis, Massachusetts, hereinafter called the
"Declarant," being the sole owner of the land with the buildings thereon known as and numbered
537-549 Scudder Avenue, Hyannis, Massachusetts, described on Exhibit A, which is attached
hereto and hereby incorporated herein by this reference and made a part hereof, does hereby, by
duly executing and recording this Master Deed,submit said land, together with the building and
improvements erected thereon, and all easements, rights and appurtenances belonging thereto,
hereinafter called the "Subject Property," to the provisions of Massachusetts General Laws, Chapter
183A, and does hereby state it proposes to create, and does hereby create, a condominium with
respect to the Subject Property, to be governed by and subject to the provisions of said Chapter
183A:
1. The Name of the Condominium:
The name of the condominium shall be School House Pond Condominium (hereinafter sometimes
referred to as "Condominium").
2. Description of Land:
The premises that constitute the Condominium consist of the land described on Exhibit A, which is
attached hereto and is hereby incorporated herein by this reference and made•a part hereof, together
with the building and improvements thereon. The Declarant hereby expressly reserves to itself and
its successors-in-title and their nominees, for a period ending two (2) years next after the date on
which this Master Deed is recorded, the easement, license, right and privilege to pass and re-pass
by vehicle and on foot in, upon, over and to the common areas and facilities of the Condominium
for all purposes, including but not limited to transportation of.construction materials in order to
complete work (if any) on the Condominium, provided that in the exercise of the rights reserved by
the Declarant in this paragraph, the Declarant will not unreasonably affect the use and enjoyment of
the common areas and facilities. Nothing in this paragraph shall be deemed to create any rights in
the general public.
3. Description of Building:
The building on said land is described on Exhibit B, which is attached hereto and is hereby
incorporated herein by this reference-and made a part hereof. Said building is hereinafter called the
Building.
4. Description of Units:
A. Units
200-0060/master deed Trus0 I '
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The unit designation of each unit, and statement of its location, approximate area, number of
rooms, and immediate common area to which it has access, and its proportionate interest in the
common areas and facilities of the Condominium are as set forth on Exhibit C, which is attached
hereto and is hereby incorporated herein by this reference and made a part hereof. The boundaries
of each unit with respect to the floors, ceilings, walls, doors and windows thereof, are as follows:
(i) Floors: The upper surface of the concrete forming the floor of the basement of those
Units having basements and the plane of the upper surface of the sub-flooring in those Units
without basements;
(ii) Ceilings: With respect to unit, the plane of the bottommost surface of the floor joists,
and other structural members appurtenant to such floor joists, of the floor above; with
respect to all other units, the plane of the bottommost surface of the roof joists and other
structural members appurtenant to such roof joists;
(iii) Building Walls: With respect to all units, the plane of the wall studs facing the interior
of the unit, or if there be no wall studs, the surface of the masonry wall facing the interior of
the unit.
(iv) Pipe Chases or Other Enclosures concealing pipes, wires, or conduits within a unit are
part of that unit, but the pipes, wires or conduits within such pipe.chase or other enclosure
that serve more than one unit are part of the common areas and facilities.
(v) Doors and Windows that open from a unit are part of the unit from which they open.
(vi) Fireplaces, and flues located within chimneys, are a part of the Unit served by such
fireplace and flue. Chimneys are a part of the common areas and Facilities.
(vii) All Structural Portions of the building are part of the common areas and facilities.
B. Parking
The use of parking spaces may be assigned to particular Unit Owners in a Unit Deed from the
Declarant or by the Trustees of School House Pond Condominium Trust-for such monthly charges
as said Trustees may in their discretion determine is necessary for the upkeep and maintenance of
the parking spaces, any such charges to constitute common funds upon receipt of the Trustees, and
insofar as such parking spaces, if any, are not so assigned, the same shall be available for
occasional use by all occupants of Units and their guests, subject to and in accordance with the By-
Laws and Rules and Regulations of School House Pond Condominium•Trust. Maintenance of the
parking area including, but not limited to, striping, paving, snow removal, and cleaning shall be a
common expense.
The parking spaces may be occupied by private noncommercial passenger vehicles only as defined
herein, and may not be used for any purpose except the parking of vehicles. The term "private
noncommercial passenger vehicles" as used herein shall include automobiles, recreational vehicles,
and, to the extent customarily used primarily for transportation of passengers rather than cargo,
200-0060/master deed TrusO 2
small pickup type trucks. The fact that a vehicle described herein bears "Commercial" license
plates shall in and of itself, not render such vehicle a commercial vehicle. Parking spaces shall not
be used for storage. No boats, trailers, unregistered vehicles, or inoperable vehicles shall be
permitted to be parked in the parking spaces.
C. Garage Spaces
The use of parking spaces in the Garage Buildings may be designated in a Unit Deed from the
Declarant or an instrument of assignment from the Declarant to particular Unit Owners, subject to
such monthly charges as the Trustees of the School House Pond Condominium Trust may in their
discretion determine is necessary for the upkeep and maintenance of the Garage Buildings, any
such charges to constitute common funds upon receipt of the Trustees, and subject to and in
accordance with the By-Laws and Rules and Regulations of School House Pond Condominium
Trust. Maintenance of the Garage Buildings shall be a common expense. Each of the two (2)
"Affordable Units, as hereinafter defined, shall each be granted the use of one (1) parking space in
the Garage
The parking spaces in the Garage Buildings may be occupied by private noncommercial passenger
vehicles only as defined herein, and may not be used for,any purpose except the parking of
vehicles. The term "private noncommercial passenger vehicles" as used herein shall include
automobiles, recreational vehicles and, to the extent customarily used primarily for transportation
of passengers rather than cargo, small pickup type trucks. The fact that a vehicle described herein
bears "Commercial' license plates shall in and of itself, not render such vehicle a commercial
vehicle. Parking spaces in the Garage Buildings shall not be used for storage. No boats, trailers,
unregistered vehicles, or inoperable vehicles shall be permitted to be parked in the parking spaces
in the Garage Buildings.
5. Description of Common Areas and Facilities and the Proportionate Interest of Each
Unit Therein:
The common areas and facilities of the Condominium consist of the entire subject premises as
described in paragraph 2. ('Description of Land") of this Master Deed and all parts of the buildings
as described in paragraph 3. ('Description of Buildings") of this Master Deed, other than the units
described on Exhibit C hereto, subject to the provisions regarding parking set forth in subsection
4.B and 4. C. hereof.
Without limiting the foregoing language in this paragraph 5, the common areas and facilities of the
Condominium include:
(i) the land described in paragraph 2. ('Description of Land") of this Master Deed, subject to
the provisions regarding parking set forth in subsections 43 and 4.0 hereof;
(ii) the foundation of the Building, and all portions thereof,and all structural columns,
structural lintels, girders, beams, slabs, supports, and floor, ceiling and roof beams and
joists and all structural members appurtenant to such floor ceiling and roof beams and
joists, the exterior walls, and any interior bearing walls, the subflooring below the upper
200-0060/master deed Trust3 3
i
surface thereof, the roof, building entrances and exits, and all structural portions of the
building;
(iii) installations of central services such as power, light, drains, hot and cold water, vents,
heating and heating lines, but only if and to the extent that such installations serve more than
one unit. Such equipment and installations servicing a single unit, whether located in whole
or in part within such unit, or without such unit, are a part of the unit which it services and is
not a part of the common areas and facilities;
(iv) all conduits, pipes, ducts, plumbing, wiring, flues and other facilities for the furnishing of
utility services or waste removal and vents that are contained in portions of the building
outside of the units and all installations outside the units for services such as lights, power,
telephone, water, and sanitary sewer drainage;
(v) exterior lighting devices and wires and poles serving the same;
(vi) the parking facilities subject to the provisions set forth in subsection 4.B hereof;
(vii) the yards, lawns, driveways, plants, planters, signs walkways, grounds and improvements
thereon;
(viii) the porches and decks; provided however, that each unit shall have the exclusive right to use
the porch and deck shown on the Master Plans as contiguous thereto;
(ix) all other items situated on the subject property and listed as common areas in
Massachusetts General Laws, Chapter 183A, except for the units described on Exhibit C
hereto, subject to the provisions relating to parking set forth in subsections 4.B and 4.0
hereof. The proportionate interest of each unit of the Condominium in the common areas
and facilities of the Condominium shall be as set sorth on Exhibit C, which is attached hereto
and is hereby incorporated herein by this reference and made a part hereof.
5. Plans:
A Site Plan and a set of the Floor Plans of the building showing the layout, location, unit numbers
and dimensions of the units, and bearing the verified statement of a Registered Architect certifying
that the plans fully and accurately depict the layout, location, unit number and dimensions of the
units as built, all pursuant to Massachusetts General Laws, Chapter 183A, have been recorded
simultaneously with the recording of this Master Deed. Said set of plans, herein sometimes called
the "Master Plans," is hereby incorporated herein by this reference and made a part hereof.
6. Use of Units:
(i) The building and each of the units are intended only for residential purposes by not more
than one family unit nor more than two (2) unrelated persons per bedroom;
(ii) No portion of the units shown as Loft, attic or Basement Area on the Master Plans shall
be used as a sleeping area or bedroom; loft areas shall remain open and half wall sections
shall nor be enclosed, nor shall closets be added within the loft areas.
200-0060/master deed Trust3 4
(iii) No unit shall be used or maintained in a manner inconsistent with the Bylaws of the
Condominium Trust and the rules and regulations from time to time adopted pursuant
thereto;
(iii) Notwithstanding the foregoing, until the Declarant or its successors-in-title or their
nominees have sold and conveyed all of the units, the Declarant and its successors-in-
title or their nominees may use one or more units for sales offices or models and may
maintain "FOR SALE" signs on and in the building;
(iv) No unit shall be reconfigured to have more than two bedrooms; and
(v) No unit shall be rented, leased or sub-leased for less than a one (1) year term.
7. Restrictions and Obligations on Imposed By the
Comprehensive Permit and Regulatory Agreement :
A. T addition the + ' +' imposed e A14 Units are subject to the terms of the
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Comprehensive Permit issued by the Barnstable Zoning Board of Appeals in Appeal No. 2001-
26, recorded with the Barnstable County Registry of Deeds in Book Page ,
(hereinafter"Comprehensive Permit") and the provisions of the Regulatory Agreement and
Declaration of Restrictive Covenants, dated , 2002 and recorded with the
Barnstable County Registry of Deeds in Book Page , which is hereby
incorporated herein by this reference and made a part hereof(hereinafter "Agreement").
B. To enforce the terms of the Comprehensive Permit and Regulatory Agreement, the town or
its designee may secure a lien on any and all property that is subject of the comprehensive
permit to secure payment of such costs and expenses.
C. . The following restrictions are imposed upon the Affordable Units (Units 3 and 8:
1. Without limiting the generality of the foregoing, the Affordable Units shall be
subject, in perpetuity, to the resale provisions and affordability criteria as set forth in
the Agreement, and each Affordable Unit shall be conveyed subject to a Deed Rider
in the form of Exhibit B attached to the Agreement.
2. The provisions of this Section 7 shall constitute a permanent restriction pursuant to
G.L. c. 184 § 26 running in favor of the Town of Barnstable and encumbering the
Affordable Units.
C.
8. ' Amendment of Master Deed:
(i) While the Declarant owns at least fifty (50%) percent of the Units, this Master Deed may be
amended by the Declarant with the written consent of a majority of the holders of first
mortgages on the mortgaged units (but only if such amendment would materially affect the
rights of any mortgagee), provided that any such amendment shall not substantially reduce
the enjoyment or substantially increase the burden of any Unit owner and no instrument of
amendment that alters this Master Deed in any manner contrary to or inconsistent with
provisions of the Comprehensive Permit, the Regulatory Agreement or Restrictive
200-0060/master deed TrusO 5
Covenant by and between the Declarant and the Town shall be of any force or effect unless
agreed to in writing by the Town of Barnstable.
(ii)
(iii) _: Thereafter, this Master Deed may be amended by an instrument in writing (i) signed and
acknowledged in proper form for recording by the owners of units entitled to not less than
sixty-six and two-thirds (66 2/3%) percent of the undivided interests in the common areas
and facilities and (ii) signed and acknowledged in proper form for recording by not less
than fifty-one (51%) percent (except in cases where a higher percentage is required by
Section 33 of the Bylaws of the Condominium Trust) of the holders of first mortgages on
the units (based upon one vote for each mortgage owned), but only if such amendment
would materially affect the rights of any mortgagee; and (iii) signed and acknowledged in
proper form for recording by a majority of the Trustees of the Condominium Trust; and
(iv) duly recorded in the Barnstable County Registry of Deeds, provided, however, that:
(ii) The date on which any such instrument amending this Master Deed is first signed by a Unit
Owner, or mortgagee, or Trustee of the.Condominium Trust, shall be indicated thereon as the
date of such instrument, and no such instrument shall be of any force or effect unless and
until the same has been recorded in the Barnstable County Registry of Deeds within six (6)
months after such date; and
(iii) Pursuant to the provisions of Chapter 87 of the Acts of 1987, the percentage of the undivided
interest of each Unit Owner in the common areas and facilities shall not be altered without
the consent of all Unit Owners whose percentage of the undivided interest is affected,
expressed in an amended Master Deed duly recorded; and
(iv) No instrument of amendment that alters the dimensions of any unit shall.be of any force or
effect unless the same has been signed and acknowledged in proper form for recording by
the owner or owners and mortgagee or mortgagees of the units so altered; and
(v) No instrument of amendment that alters the rights of the Declarant, or the rights of the
owners of easements for the exclusive use of Parking Spaces and Garages, shall be of any
force or effect unless the same has been signed and acknowledged in proper form for
recording by, respectively, the Declarant, so long as the Declarant owns any unit in the
Condominium, or the owners of easements for the exclusive use of Parking Spaces and
Garages, respectively; and
(vi) No instrument of amendment that alters this Master Deed in any manner contrary to or
inconsistent with the provisions of the Comprehensive Permit Regulatory Agreement and
Declaration of Restrictive Covenants by.and between the Declarant and the Town of
Barnstable, as referenced and described above in Section 7 shall be of any force or effect
unless agreed to, in writing, by the Town of Barnstable.
(vii) No instrument of amendment that alters this Master Deed in any manner contrary to or
inconsistent with the provisions of Massachusetts General Laws, Chapter 183A shall be of
any force or effect.
200-0060/master deed TrusO 6
f
(viii) Notwithstanding any other provisions of this Section (h), no amendment of this Master
Deed shall be made if such amendment would contravene the provisions of Section 33 of
the Bylaws of the Condominium Trust.
(ix) Notwithstanding anything to the contrary herein, so long as the Declarant owns any unit in
the Condominium, the Declarant shall have the right, at any time, and from time to time, to amend
this Master Deed without the consent of any other Unit Owners or any of the Trustees of the
Condominium Trust, to meet the requirements of any governmental or quasi-governmental body or
agency, or the requirements of any insurance company or insurance underwriting office or
organization, or the requirements of Federal National Mortgage Association, Federal Home Loan
Mortgage Corporation, the secondary mortgage market, or any lender, or to correct typographical
or clerical errors, or to cure any ambiguity, inconsistency or formal defect or omission.
Notwithstanding the foregoing, no instrument of amendment that alters this Master Deed in any
manner contrary to or inconsistent with the provisions of the Comprehensive Permit or the
Regulatory Agreement and Declaration of Restrictive Covenants by and between the Declarant and
the Town of Barnstable, as referenced and described above in Section 7 shall be of any force or
effect unless agreed to, in writing, by the Town of Barnstable.
9. Condominium Unit Owners' Association:
The name of the Trust that has been formed and through which the Unit Owners will manage and
regulate the Condominium hereby established is the School House Pond Condominium Trust under
Declaration of Trust dated , 200_, to be recorded herewith. Said Declaration
of Trust establishes that all Unit Owners in the Condominium hereby established shall be
beneficiaries of said Trust, and that the beneficial interest of each Unit Owner in said Trust shall be
the same percentage interest as his percentage of undivided interest in the common areas and
facilities as established by this Master Deed. The mailing address of said Trust is 297 North Street,
Hyannis, Massachusetts, 02601.
The names and addresses of the initial Trustee of said Trust and its term of office are as follows:
Aaron Bornstein
Chatham Real Properties, Inc.
297 North Street
Hyannis, Massachusetts, 02601.
Term: As set forth in Section III of the Declaration of Trust of School House Pond Condominium
Trust.
The Trustees have enacted Bylaws pursuant to Massachusetts General Laws, Chapter 183A, which
are set forth in the Declaration of Trust of said Trust which is recorded herewith.
10. Encroachments:
200-0060/master deed Trust3 7
If any portion of the common areas and facilities now encroaches upon any unit, or if any unit now
encroaches upon any other unit or upon any portion of the common areas and facilities, or if any
such encroachment or encroachments shall occur at any time or from time to time hereafter as the
result of(1) settling of the building, or (2) condemnation or eminent domain proceedings, or (3)
alteration or repair of the common areas and facilities or any part thereof done pursuant to the
provisions of this Master Deed as the same may be from time to time amended, or the provisions of
the Declaration of Trust of the Condominium Trust as the same may be from time to time amended,
or (4) repair or restoration of the building or any unit therein after damage by fire or other casualty,
then and in any of the foregoing events, a valid easement shall exist for such encroachment and for
the maintenance of same for so long as the building stands.
11. Pipes, Wires,Flues, Ducts, Conduits, Plumbing Lines and Other Common Facilities
Located Inside of Units:
Each Unit Owner shall have an easement in common with the owner of the other units to use all
pipes, wires, flues, ducts, conduits, plumbing lines and other portions of the common areas and
facilities located in the other units and serving his unit. Each unit shall be subject to an easement in
favor of the owner of the other units to use all pipes, wires, flues, ducts, conduits, plumbing lines
and other portions of the common areas and facilities serving such other units and located in such
unit. The Trustees of the Condominium Trust shall have a right of access to each unit to inspect the
same, to remove violations therefrom and to maintain, repair or replace any portions of the
common areas and facilities contained therein or elsewhere in the building.
12. All Units Subject to Master Deed,Unit Deed, and Bylaws and Rules and Regulations
of the Condominium Trust:
All present and future owners, tenants, visitors, servants and occupants of units and Parking Spaces
and Garages shall be subject to, and shall comply with, the provisions of this Master Deed as the
same may be from time to time amended, the Unit Deed, the Condominium Trust, and the Bylaws,
and Rules and Regulations of the Condominium Trust as the same may be from time to time
amended, and the rights, easements, agreements and restrictions of record and all matters set forth
on Exhibit A hereto insofar as the same now are, or will be in the future, in force and applicable.
The acceptance of a deed or conveyance or the entering into a lease or into occupancy of any unit
or Parking Space shall constitute an agreement that the provisions of this Master Deed as the same
may be from time to time amended, and the said rights, easements, agreements and restrictions, and
all matters set forth on Exhibit A hereto, and the Unit Deed, and the Condominium Trust and the
Bylaws and Rules and Regulations thereto, as the same may be from time to time amended, are
accepted and ratified by such owner, tenant, visitor, servant or occupant. All such provisions shall
be deemed and taken to be covenants running with the land and shall bind any person having, at any
time any interest or estate in such unit or Parking Space as though such provisions were recited or
stipulated at length in each and every deed or conveyance or lease or occupancy agreement hereof.
13. Federal Home Loan Mortgage Corporation; Federal National Mortgage Association:
8
200-0060/master deed TrusO
f
Reference is hereby made to Section 33 of the Bylaws of the Condominium Trust, which is hereby
incorporated herein by this reference and made a part hereof.
14. Invalidity:
The invalidity of any provision of this Master Deed shall not be deemed to impair or affect in any
manner the validity, enforceability or effect of the remainder of this Master Deed, and.in such
event, all of the provisions of this Master Deed shall continue in full force and effect as if such
invalid provision had never been included herein.
15. Waiver:
No provision contained in this Master Deed shall be deemed to have been abrogated or waived by
reason of any failure to enforce the same, irrespective of the number of violations or breaches that
may occur.
16. Captions:
The captions herein are inserted only as a matter of convenience and for reference, and in no way
define, limit or describe the scope of this Master Deed or the intent of any provisions hereof.
17. Conflicts:
This Master Deed is set forth to comply with the requirements of Chapter 183A of the General
Laws of the Commonwealth of Massachusetts. In case any of the provisions stated above conflict
with the provisions of said statute, the provisions of said statute shall control.
18. Liability:
Notwithstanding anything to the contrary herein, and notwithstanding any custom or usage to the
contrary, it is expressly understood and agreed that only the real estate that constitutes the School
House Pond Condominium shall be bound by the provisions of this Master Deed. The Declarant, .
and any'of them, shall never be personally or individually bound or liable to anyone whomsoever
with respect to any of the provisions of this Master Deed beyond the Declarant's interest in the real
estate that constitutes the School House Pond Condominium, except the Declarant acknowledges
that he remains bound and liable for any costs, fees or other monies incurred or owed relating to the
enforcement of the terms of the Comprehensive Permit and Regulatory Agreement referenced
herein.
EXECUTED as an instrument under seal at Hyannis, Barnstable County, Massachusetts this
day of 200_.
School House Pond Condominium y Signed and sealed in the presence of:
BY: Witness
Chatham Real Properties, Inc.,Trustee
200-0060/master deed TrusO 9
COMMONWEALTH OF MASSACHUSETTS
Barnstable, ss. 2001
Then personally appeared the above named
and acknowledged the foregoing instrument to be free,act and deed before me,
Notary Public
My commission expires:
I
200-0060/master deed TrusO 10
i
Exhibit A
Incorporated by reference into and made a part of the Master Deed of School House Pond, 537-549
Scudder Avenue, Hyannis, Barnstable County, Massachusetts.
Three parcels of land located in said Hyannisport, bounded and described as follows:
PARCEL ONE
All that certain lot, piece or parcel of land, together with the improvements erected thereon, situate,
lying and being on the Easterly side of Scudder Avenue, so-called, in the Village of Hyannisport,
bounded and described as follows:
WESTERLY by the town road leading to the harbor(Scudder Avenue);
NORTHERLY by the land and orchard formerly of Eli Hinkley;
EASTERLY and
SOUTHERLY by land formerly of Desire Scudder;
and is ten (10) rods long north and south and eight (8) rods wide east and west and contains eighty
(80) rods.
PARCEL TWO
All that certain lot, piece or parcel of land, together with the improvements erected thereon, situate,
lying and being on the Northerly side of Lake Avenue, so-called, in the Village of Hyannisport,
bounded and described as follows:
Beginning at the northwesterly corner of said lot, piece or parcel at the northeasterly corner or land
now or formerly of Elijah H. Phinney known as "School House Lot" (Lot No. 1 and land now or
formerly of Frank McCabe);
THENCE running South 88' East, by said land now or formerly of McCabe to the
southeasterly corner of said land now or formerly of McCabe, marked by an
iron pipe set in the ground;
THENCE North 62' East to the end of the "School House Pond", so-called;
THENCE in a southerly and easterly direction by the edge of said Pond, to the division
line between Lots 96 and 97 in Section 3 as shown on a"Plan of Seashore
Lots at Hyannisport, Mass., belonging to Hyannis Land Co., at Hyannis,
Barnstable County, Mass., 1872, R. Cook, Surveyor", recorded with
Barnstable County Registry of Deeds, Book 111, Page 30, extended to the
Pond.
200-0060/master deed TrusO 11
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r
THENCE southerly by said extended dividing line, to "Lake Avenue" as shown on said
plan;
THENCE westerly by said Lake Avenue to the southeasterly corner of land now or
formerly of Elijah H. Phinney, known as the "School House Lot" as
aforesaid;
THENCE northerly by said land now or formerly of Elijah H. Phinney to the point of
beginning.
PARCEL THREE
All that certain lot, piece or parcel of land, together with the improvements erected thereon, situate,
lying and being in the Village of Hyannisport, bounded and described as follows:
WESTERLY by the east side of Scudder Avenue, seventy (70) feet;
NORTHERLY by land now or formerly of Harriet C. Carpenter, about one hundred twenty-
five (125) feet;
EASTERLY by land now or formerly of said Carpenter, about seventy (70) feet;
SOUTHERLY by land now or formerly of E. Henry Phinney, about one hundred twenty-
five (125) feet.
Containing an area of 1/5th of an acre, more or less.
For title see deed recorded at Book 11125, Page 75 in the Barnstable County Registry of Deeds.
Said Premises are subject to zoning laws of the Town of Barnstable and the Comprehensive Permit,
and are subject to and with the benefit of rights, restrictions, easements, and agreements of record,
if any, so far as are now in force and applicable. In addition, said premises shall be subject to the
easements specified in the comprehensive permit.
The above described Premises are also subject to easements for utility and telephone services
granted to any public utility or telephone company by the Declarant, whether granted heretofore or.
hereafter, to the extent that the same are now or hereafter in force and applicable. The Trustees of
the Condominium Trust shall have the right to grant permits, licenses and easements over the
common areas and facilities for utilities and other purposes reasonably necessary or useful for the
proper maintenance or operation of the condominium project.
200-0060/master deed TrusO 12
Exhibit B
Incorporated by reference into and made a part of the Master Deed of School House Pond
Condominium, 537-549 Scudder Avenue, Hyannis, Barnstable County, Massachusetts.
DESCRIPTION OF BUILDINGS
There are three buildings on the land, which is described on Exhibit A to this Master Deed.
The Condominium Building is a two (2)story building, plus basement. The building is constructed
principally of wood. The floor joists and the roof joists are wood. The roof is asphalt shingle.
There are eight (8) residential units.
There are two (2) Garage Buildings. Each Garage Building is one (1) —story, on a concrete slab
foundation, and constructed principally of wood with an asphalt shingle roof.
SCHOOL HOUSE POND CONDOMINIUM TRUST
DECLARATION OF TRUST
SCHOOL HOUSE POND CONDOMINIUM: AT 537-549 SCUDDER AVENUE, HYANNIS,
MASSACHUSETTS
DECLARATION OF TRUST of SCHOOL HOUSE POND CONDOMINIUM TRUST made at
Hyannis, Barnstable County, Massachusetts, by Chatham Real Properties, Inc. of 297 North Street,
Hyannis, Barnstable County, Massachusetts, 02601 (hereinafter called the "Trustee"), which term
includes its successors in trust. The term "Trustee" or "Trustees" also means the Trustee or Trustees
for the time being hereunder, whenever the context so permits.
I. NAME OF TRUST
The trust created hereby shall be known as SCHOOL HOUSE POND CONDOMINIUM TRUST,
and all activities carried on by the Trustees hereunder shall, insofar as legal, practical and
convenient, be conducted under said name and style.
II. PURPOSES
(a) All of the rights and powers in, to and with respect to the common areas and facilities of the
School House Pond Condominium established by Master Deed of even date and recorded
herewith (hereinafter called the "Condominium"), which are by virtue of the provisions of
Massachusetts General Laws, Chapter 183A, "Condominiums" (hereinafter called "Chapter
183A") conferred upon or exercisable by the organization of unit owners of the Condominium
and all property, real and personal, tangible and intangible, conveyed to the Trustees hereunder
shall vest in the Trustees as joint tenants, with right of survivorship, as Trustees of this Trust,
BUT IN TRUST NEVERTHELESS, to exercise, manage, administer and dispose of the same
and to receive the income thereof for the benefit of the owners of record from time to time of
the units of the Condominium (hereinafter called the "Unit Owners"), according to the schedule
of beneficial interest referred to in Section 4 hereof, and in accordance with the provisions of
said Chapter 183A. This Trust is the organization of the Unit Owners established pursuant to
the provisions of said Chapter 183A for the purposes therein set forth.
(b) It is hereby expressly declared that a Trust, and not a Partnership, has been hereby created and
that the Unit Owners are beneficiaries and not partners or associates or any other relation
whatever among themselves with respect to the trust property and that they hold no relation to
the Trustees other than as such beneficiaries, with only such rights as are conferred upon them
as such beneficiaries hereunder and under and pursuant to the provisions.of said Chapter 183A.
200-0060/master deed TrusO 15
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III. TRUSTEES
(a) Appointment of Trustees
(i) Initial Board
The Initial Board shall consist of the Trustee named in the,first paragraph of this Declaration of
Trust, to wit: Chatham Real Properties, Inc. (hereinafter called the "Initial Board"). The term of the
Initial Board shall end upon the earliest to occur of the following events: (a) four (4) months after
seventy-five percent (75%) of the units have been conveyed to unit purchasers; or (b) three (3)
years following the conveyance of the first unit. Notwithstanding any other term or provision of
this Trust to the contrary; (A) the Unit Owners shall have no power or right to remove the Initial
Board, namely, Chatham Real Properties, Inc., nor to appoint any additional or successor Trustees,
until the expiration of the term of said Initial Board shall have expired as set forth in the
immediately preceding sentence; and (B) during the term of the Initial Board, any vacancy in the
office of a Trustee, however caused, shall be filled only by the designation of the Declarant of the
Master Deed.
(ii) Subsequent Boards of Trustees
After the term of the Initial Board, there shall at all subsequent times be a Board of Trustees
hereunder consisting of not less than three (3) nor more than five (5) natural persons, but in any
event an odd number, as shall be determined by vote of Unit Owners entitled to not less than fifty-
one percent (51%) of the beneficial interest hereunder. Provided however, at least one (1) member
of said Board of Trustees shall be determined to solely by vote of the Unit Owners of the
Affordable Units as defined in the Master Deed.
(b) Vacancies
After the expiration of the term of the Initial Board, if and when the number of Trustees shall
become less than three (3), a vacancy or vacancies in said office shall be deemed to exist. Each
such vacancy shall be filled by written instrument setting forth (a) the appointment of a natural
person to act as such Trustee, signed (i) by Unit Owners entitled to not less than fifty-one percent
('51%) of the,beneficiaLinterest hereunder or�ii) if the vacancy is by the member of said Board of
Trustees who was determined solely by the vote of the Unit Ownes of the Affordable Units as
defined by the Master Deed, then said vacancy shall be filled solely by a vote of the Unit Owners of
the Affordable Units as defined by the Master Deed; (iii) if the Unit Owner(s)entitled to such
percentage have not made such an appointment within thirty(30) days after the occurrence of such
vacancy, by the remaining Trustees and acknowledged by one of the signatories; and (b) the
acceptance of such appointment, signed and acknowledged in proper form for recording by the
person so appointed. Such appointment shall become effective upon the recording with the
Barnstable County Registry of Deeds of a certificate of such appointment, signed and accepted as
aforesaid, and such person shall then be and become such Trustee and shall be vested with the title
to the Trust property,jointly with the remaining or surviving Trustee or Trustees, without the
necessity of any act of transfer or conveyance. If, for any reason, any such vacancy in the office of
Trustee shall continue for more than sixty (60) days and shall at the end of that time remain
200-0060/master deed TrusO 16
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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 the other Unit Owners
and all Trustees and to such other parties in interest, if any, to whom the court may direct that
notice be given. Such appointment shall become effective upon the recording with the Barnstable
County Registry of Deeds of a certificate or order of such appointment. Notwithstanding anything
to the contrary in this subsection (b), despite any vacancy in the office of Trustee, however caused
and for whatever duration, the remaining or surviving Trustees, subject to the provisions of the
immediately following subsection (c), shall continue to exercise and discharge all of the powers,
discretions and duties hereby conferred or imposed upon the Trustees.
(c) Majority Vote
In all matters relating to the administration of the Trust hereunder and the exercise of the powers
hereby conferred, the Trustees shall act by majority vote, provided that in no case shall a majority
consist of less than two (2). The Trustees may so act without a meeting by instrument signed by all
Trustees.
(d) Resignation of Trustees
(i) Any Trustee may resign at any time by instrument in writing, signed and acknowledged in
proper form for recording and such resignation shall take effect upon the recording of
such document with the Barnstable County Registry of Deeds.
(ii) After reasonable notice and opportunity to be heard before the Unit Owners called pursuant to
Sections 8 and 34 of the Bylaws hereof, a Trustee (except a member of the Initial Board) may
be removed from office with or without cause, by an instrument in writing signed by vote of
Unit Owners entitled to not less than fifty-one percent (51%) of the beneficial interest
hereunder, such instrument to take effect upon the recording thereof with said Barnstable
County Registry of Deeds.
(e) Bonds
The Trustees shall obtain and maintain fidelity bonds as set forth in Section 3 of the Bylaws of this
Trust.
(f) Good Faith
No Trustee hereinbefore named, or appointed or designated as hereinbefore provided, shall under.
any circumstances or in any event be held liable or accountable out of his or her personal assets or
estate or be deprived of compensation by reason of any action taken, suffered or omitted in good
faith, or be so liable, accountable or deprived for more money or other property than he or she
actually receives, or for allowing one or more of the other Trustees to have possession of the Trust
books or property, 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 interest or gain or by reason
of anything except his or her own personal and willful malfeasance, bad faith, or fraud.
17
200-0060/master deed Trust3
(g) Conflict of Interest
No Trustee shall be disqualified by his or her office from contracting or dealing with the Trustees
or with one or more Unit Owners (whether directly or indirectly because of his or her 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 of any other reason) as
vendor, purchaser or otherwise, nor shall any such dealing,,contract or arrangement entered into in
respect of this Trustee in which any Trustee shall be in any way interested be avoided, nor shall any
Trustee so dealing or contracting or being so interested be liable to account for any profit realized
by any such dealing, contract or arrangement by reason of such Trustee's holding office or of the
fiduciary relationship hereby established, provided the Trustee shall act in good faith and shall
disclose to the other Trustees the nature of his or her interest before the dealing; contract, or
arrangement is entered into.
It is understood and permissible for the Initial Board hereunder and any other Trustees designated
by the Initial Board or who are employed by or affiliated or associated with the Declarant, to
contract with the Declarant and any corporation, firm, trust or other organization controlled by or
affiliated or associated with the Declarant without fear of being charged with self-dealing.
Notwithstanding the previous sentence, any such contract may be treated as a related party expense
for the purpose of determining the profit limitation as defined under the Comprehensive Permit and
Regulatory Agreement.
(h) Compensation
The Trustees shall receive no compensation for their services as such Trustees. However, with the
prior written approval in each instance of the other Trustees, and upon presentation of proper
vouchers, each Trustee may be reimbursed for actual out-of-pocket expenses paid or incurred by
him or her pursuant to his or her duties as such Trustee, and such reimbursement shall be a
Common Expense of the Condominium.
With the prior written approval in each instance of the other Trustees, each Trustee may receive
reasonable compensation for any extraordinary or unusual services rendered by him or her in
connection with this Trust, and such compensation shall be a Common Expense of the
Condominium.
With the prior written approval in each instance of the other Trustees, any Trustee may be engaged
to render services to this Trust, legal, accounting, or otherwise, at such compensation as shall be
fixed by the Trustees, and any fees or other compensation shall be a Common Expense of the
Condominium.
Notwithstanding anything to the contrary in this subsection (h) of this Section 3, no compensation,
reimbursement, or fees shall be paid to the Initial Board pursuant to the provisions of subsection (a)
of this Section 3. A Trustee shall abstain from voting upon any question regarding reimbursement,
compensation, or fees proposed to be paid to him or her pursuant to the provisions of this
subjection (h) of this Section 3, or upon any question regarding the engagement of himself or
200-0060/master deed TrusO 18
t
herself, or any firm, association, corporation or partnership of which he or she is a member, to
render services, legal, accounting or otherwise to this Trust.
(i) Indemnity
The Trustees and each of them shall be entitled to indemnity both out of the trust property, and by
the Unit Owners severally, in proportion to their ownership in the common areas and facilities;
against any liability incurred by them or any of them in the execution hereof, including, without
limitation, liabilities in contract and in tort and liabilities for damages, penalties, and fines. Each
Unit Owner shall be personally liable for all sums lawfully assessed for his or her share of the
Common Expenses of the Condominium and for his or her proportionate share of any claims
involving the trust property in excess thereof.
(j) No vote of the Trustees which is contrary to or inconsistent with the provisions of the
Comprehensive Permit issued by the Barnstable Zoning Board of Appeals or the Regulatory
Agreement and Declaration of Restrictive Covenants by and between the Declarant and the Town
of Barnstable, as referenced and described above in Section 7 shall be of any force or effect unless
agreed to, in writing, by the Town of Barnstable.
IV. BENEFICIARIES AND THEIR BENEFICIAL INTEREST
(a) The beneficiaries hereof shall be the Unit Owners of the Condominium for the time being. The
beneficial interest in the'Trust hereunder shall be divided among the Unit Owners in the percentage
of undivided beneficial interest appertaining to the Units of the Condominium, all as set forth on
Exhibit C of the Master Deed, which is hereby incorporated herein by this reference and made a
part hereof, with the same force and effect as though fully set forth in the body hereof.
(b) The beneficial interest of each Unit of the Condominium shall be held and exercised as a unit
and shall not be divided among several owners of any such Unit. To that end, whenever any of said
Units is owned of record by more than one person, the several owners of such Unit shall:
(i) determine and designate which owner shall be authorized and entitled to cast votes, execute
instruments, and otherwise exercise the rights appertaining to such Unit hereunder; and
(ii) 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 of such notice, and may be
changed at any time and from time to time by notice as aforesaid. In the absence of any such notice
of designation, the Trustees may designate any one of such owners for such purposes.
V. BYLAWS
200-0060/master deed TrusO 19
The Bylaws of this Trust are attached hereto as Exhibit A, which is hereby incorporated herein by
this reference and made a part hereof with the same force and effect as though fully set forth in the
body hereof.
VI. RIGHTS AND OBLIGATIONS OF THIRD PARTIES DEALING WITH THE TRUST
(a) Any instrument signed and acknowledged in proper foam for recording by a majority of the
Trustees as they then appear of record in the Barnstable County Registry of Deeds and recorded
in the Barnstable County Registry of Deeds may be relied on as conclusively establishing that such
instrument was the free act of this Trust and shall be binding upon this Trust when so recorded.
(b) No purchaser, mortgagee, lender, or other person dealing with a majority of the Trustees, as
they then appear of record in the Barnstable County Registry of Deeds, shall be bound to
ascertain or inquire further as to the persons who are then the Trustees hereunder or be affected
with any notice, implied or actual, relative thereto, other than by a certificate thereof, so recorded,
and such recorded certificate shall be conclusive evidence of the personnel of said Trustees and of
any changes therein:The receipts of a majority of the Trustees, for money paid or things delivered
to them shall be effectual discharges therefrom to the persons paying or delivering the same, and no
person from whom a majority of the Trustees shall receive any money, property or other credit
shall be required to see to the application thereof. No purchaser, mortgagee, lender or other
person dealing with a majority of the Trustees, or with any real or personal property that then is or
formerly was trust property, shall be bound to ascertain or inquire as to the existence or occurrence
of any event or purpose in or for which a sale, mortgage, pledge or charge is herein authorized or
directed,or otherwise as to the purpose of regularity of any of the acts of the Trustee(s) purporting
to be done in pursuance of any of the provisions or powers herein contained, or as to the regularity
of the resignation or appointment of any Trustee. Any instrument of appointment of a new Trustee
or resignation or discharge of a Trustee purporting to be executed by the Trustees, Unit Owners or
other persons herein required to execute the same shall be conclusive evidence in favor of any such
purchaser or other person dealing with the Trustees of the matters therein recited relating to such
discharge, resignation or appointment or the occasion thereof.
(c) Notwithstanding anything to the contrary herein, and notwithstanding any custom or usage to
the contrary, no recourse shall at any time be had under or upon any note, bond, contract, order,
debt, claim, instrument, certificate, undertaking, obligation,covenant, or agreement, whether oral
or written, made, issued or executed by the Trustees or by any agent or employee of the Trustees,
or by reason of anything done or omitted to be done by or on behalf of them or any of them, against
the Trustees individually, or against any such agent or employee, or against any beneficiary,
either directly or indirectly, by legal or equitable proceedings, or by virtue of any suit or otherwise,
and all persons extending credit to, contracting with, or having any claim against the Trustees, shall
look only to the trust property for payment under such note, bond, contract, order, debt, claim,
instrument, certificate, undertaking, obligation, covenant, or agreement, or for the payment of any
debt, damage,judgment or decree, or of any money that may otherwise become due or payable to
them from the Trustees, so that neither the Trustees nor the beneficiaries, present or future, shall
ever be personally or individually liable therefore, provided, however, that nothing therein
contained shall be deemed to limit or impair the liability of the Unit Owners under the provisions of
said Chapter 183A.
200-0060/master deed TrusO 20 _
(d) Every note, bond, contract, order, instrument, certificate, undertaking, obligation, covenant or
agreement, whether oral or written, made, issued or executed by the Trustees, or by any agent or
employee of the Trustees, shall be deemed to have been entered into subject to the terms,
conditions, provisions and restrictions hereof, whether or not express reference shall be made to
this instrument.
(e) This Declaration of Trust and amendments hereto and any Certificate herein required or that it
may be deemed desirable to record, shall be recorded with the Barnstable County Registry of
Deeds. Such record, when executed according to the requirements of this Declaration of Trust, shall
be deemed conclusive evidence of the contents and effectiveness thereof according to the tenor
thereof, and all persons dealing in any manner whatsoever with the Trustees, the trust property, or
any beneficiary hereunder, shall be held to have notice of any alteration or amendment of this
Declaration of Trust, or change of Trustee or Trustees, when the same shall be so recorded. Any
certificate signed by a majority of the Trustees at the time, as they then appear of record in the
Barnstable County Registry of Deeds, setting forth as facts any matters affecting the trust, including
statements as to who are the Trustees, what action has been taken by the Trustees or beneficiaries,
and matters determining the authority of the Trustees to do any act, when duly acknowledged and
recorded with said Barnstable County Registry of Deeds, shall be conclusive evidence as to the
existence of such alleged facts in favor of all third persons, including the Trustees acting in reliance
thereon. Any certificate executed by a majority of the Trustees as they then appear of record in the
Barnstable County Registry of Deeds setting forth the existence of any facts, the existence of which
is necessary to authorize the execution of any instrument or the taking of any action by such
Trustees, shall, when duly acknowledged and recorded with said Barnstable County Registry of
Deeds, as to all persons acting in good faith in reliance thereon, be conclusive evidence of the truth
of the statement made in such certificate and of the existence of the facts therein set forth.
VII. AMENDMENTS; TERMINATION
(a) Notwithstanding anything to the contrary herein, so long as the Declarant owns any unit in the
Condominium, the Declarant shall have the right, at any time and from time to time, to amend this.
Declaration of Trust (including, but not limited to, the Bylaws hereto and the Rules and
Regulations hereto) without the consent of any Unit Owners or any of the Trustees of this Trust, to
meet the requirements of any governmental or quasi-governmental body or agency or the
requirements of any insurance company or insurance underwriting office or organization or the
requirements of the Federal National Mortgage Association, the Federal Home Loan Mortgage
Corporation, the secondary mortgage market or any lender, or to cure any ambiguity,
inconsistency or formal defect or omission, except that no amendment which is contrary to or
inconsistent with the provisions of the Comprehensive Permit issued by the Barnstable Zoning
Board of Appeals or the Regulatory Agreement and Declaration of Restrictive Covenants by and
between the Declarant and the Town of Barnstable, as referenced and described above in Section 7
shall be of any force or effect unless agreed to, in writing, by the Town of Barnstable.
(b) Subject, however, to the provisions of Section 33 of the Bylaw hereto:
200=0060/master deed TrusO 21
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(i) A majority of the Trustees, with the consent in writing of seventy-five percent (75%) in
interest of Unit Owners, may at any time and from time to time amend, alter or add to this
Declaration of Trust in any manner or to any extent, the Trustees first,however, being
duly indemnified to their reasonable satisfaction against outstanding obligations and
liabilities, provided, however, that no such amendment, alteration, addition or change shall
be made: (i) without the prior written consent of the Declarant obtained in each
instance, for so long as the Declarant remains the wyner of any Unit in the Condominium; or
(ii) according to the purport of which, the percentage of the beneficial interest hereunder of
any Unit Owner would be altered, or in any manner or to any extent whatsoever, modified or
affected so as to be different than the percentage of the individual interest of such Unit
Owner in the common areas and facilities as set forth in the Master Deed other than by
(pursuant to the provisions of 1987 Mass. Acts Chapter 87) consent of all of the Unit Owners
whose percentage of the undivided interest is affected; or (c) that would render this Trust
contrary to or inconsistent with any requirements or provisions of said Chapter 183A. Any
amendment, alteration, addition or change pursuant to the foregoing provisions of this
Section shall become effective upon the recording with the Barnstable County Registry of
Deeds of an instrument of amendment, alteration or addition, as the case may be, signed,
sealed and acknowledged in proper form for recording, setting forth in full the amendment,
alteration or addition. Such instrument, so executed and recorded, shall be conclusive
evidence of the existence of all facts and of compliance with all prerequisites to the
validity of such amendment, alteration or addition, whether stated in such instrument or not,
upon all questions as to title or affecting the rights of third persons and for all other purposes
or (d) that alters this trust in any manner which is contrary to or inconsistent with the
provisions of the Comprehensive Permit issued by the Barnstable Zoning Board of Appeals
or the Regulatory Agreement and Declaration of Restrictive Covenants by and between the
Declarant and the Town of Barnstable, as referenced and described above in Section 7 shall
be of any force or effect unless agreed to, in writing, by the Town of Barnstable.
(ii) The Trust hereby created shall terminate only upon removal of the Condominium from the
provisions of Chapter 183A in accordance with the procedure therefore set forth in said
Chapter 183A.
(iii) Upon the termination of this Trust, the Trustees may, subject to and in accordance with the
provisions of said Chapter 183A, sell and convert into money the whole of the trust property,
or any part or parts thereof and, after paying or retiring all known liabilities and obligations
of the Trustees and providing for indemnity against any other outstanding liabilities and
obligations, shall divide the proceeds thereof among, and distribute in kind, at valuations
made by them that shall be conclusive if made in good faith, all other property then held by
them in trust hereunder to the Unit Owners according to their respective percentages of
beneficial interest hereunder. In making any sale under the provisions of this subsection (c)
of this Section 7, the Trustees shall have the power to sell or vary any contract of sale and to
resell without being answerable for loss, and, for said purposes, to do all things, including
the execution and delivery of instruments, as may by their performance thereof be shown to
be in their judgment necessary or desirable in connection therewith. The powers of sale and
all other powers herein given to the Trustees shall continue as to all property at any time
200-0060/master deed Trust3 22
remaining in their hands or ownership, even though all times herein fixed for distribution of
trust property may have passed.
The provisions of Section 33 of the Bylaws hereto shall at all times take precedence over the
provisions of this Section 7.
VIII. CONSTRUCTION: INTERPRETATION
(a) In the construction hereof, whether or not so expressed, words used in the singular or in the
plural, respectively, shall include both the plural and singular; words denoting males include
females; and words denoting persons include individuals, firms, associations, companies (joint
stock or otherwise), partnerships, entities and quasi-entities, trusts and corporations; unless a
contrary intention is to be inferred from or is required by the subject matter or context. The
marginal and sectional captions and headings are inserted only for convenience of reference and are
not to be taken to be any part hereof or to control or affect the meaning, construction, interpretation,
or effect hereof.
(b) All of the trusts, powers, and provisions herein contained shall take effect and be construed
according to the laws of the Commonwealth of Massachusetts in general, and with respect to
Massachusetts General Laws, Chapter 183A, in particular.
(c) The invalidity of any provision or part of such provision hereof shall not impair or affect in any
manner the remainder hereof or the remainder of such provision or such part of such provision.
(d) No restriction, condition, obligation or provision contained herein (including, but not limited to,
the Bylaws hereof, attached hereto as Exhibit A and incorporated herein by reference) shall be
deemed to have been waived by reason of any failure to enforce the same, irrespective of the
number or frequency of violations or breaches thereof that may occur.
(e) In the event of any conflict between the provisions hereof(including, but not limited to, the
Bylaws hereof attached hereto as Exhibit A and incorporated herein by reference) and the
provisions of Massachusetts General Laws, Chapter 183A, and the Master Deed, then the
provisions of said Chapter 183A, or of the Master Deed, as the case may be, shall control. Words
defined in said Chapter 183A shall have the same meaning herein as defined in said statute, unless
the context clearly indicates otherwise.
EXECUTED as an instrument under seal at Hyannis, Barnstable County, Massachusetts, this 10th
day of , 200_.
f
COMMONWEALTH OF MASSACHUSETTS
200-0060/master deed Trust3 23
4
Barnstable, ss. , 200_
Then personally appeared the above-named and
acknowledged the foregoing instrument to be their free act and deed,
before me,
Notary Public
My commission expires:
I
200-0060/master deed TrusO 24
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Exhibit A
Exhibit A is hereby incorporated into and made a part of the Declaration of Trust of SCHOOL
HOUSE POND CONDOMINIUM TRUST.
BYLAWS: SCHOOL HOUSE POND CONDOMINIUM TRUST
The provisions of this Exhibit A to SCHOOL HOUSE POND CONDOMINIUM TRUST shall
constitute the Bylaws of SCHOOL HOUSE POND CONDOMINIUM TRUST, the organization of
Unit Owners established by said Trust.
1. Powers and Duties of the Trustees
The Board of Trustees shall have all powers necessary for administering the affairs of the
Condominium asset forth in Massachusetts General Laws, Chapter 183A ("Condominiums"),
hereinafter called "Chapter 183A," and they may do any and all acts necessary or desirable for the
administration of the affairs of the Condominium except only for such acts as may not, under law
or under the provisions of the Master Deed or this Trust, be delegated to the Trustees by the Unit
Owners. Such powers and duties of the Trustees shall include, but shall not be limited to, the
following:
(a) operation, care, upkeep and maintenance of the common areas and facilities;
(b) determination of the Common Expenses required for the affairs of the Condominium, including
but not limited to the operation and maintenance of the common areas and facilities;
(c) collection of the Common Expenses, from the Unit Owners;
(d) employment and dismissal of the personnel necessary or advisable for the maintenance and
operation of the common areas and facilities;
(e) subject to the provisions of Section Tof these Bylaws, adopting, amending, and administering
(including waiving) Rules and Regulations.covering the details of the operation and use of the
common areas and facilities;
(f) opening bank accounts on behalf of the,Condominium, and, subject to the provisions hereof,
designating the signatories required therefore;
(g) leasing, managing and otherwise dealing with such facilities as may be provided for in the
Master Deed as being common areas and facilities;
(h) owning, conveying, encumbering, leasing and otherwise dealing with units conveyed to the
Trust'or purchased by it as a result of enforcing the lien for Common Expenses, or otherwise;
(i) obtaining insurance for the Condominium, including the units, pursuant to the provisions hereof;
200-0060/master deed TrusO 25
(j) making repairs, additions and improvements to, or alterations or restoration of, the
condominium, in accordance with the other provisions of this Trust.
(k) enforcing obligations of the Unit Owners, allocating income and expenses, and doing anything
and everything else necessary and proper for the sound management of the Condominium;
(1) subject to the provisions of Subsection (B) of Section 29 of these Bylaws, purchasing or leasing
a Unit;
(m) purchasing of units at foreclosure or other judicial sales;
(n) organizing and maintaining corporations, trusts, or other entities to act as nominee of the
Condominium in acquiring title to units on behalf of all Unit Owners under the provisions hereof;
(o) conducting litigation as to any course of action involving the common areas and facilities or
arising out of the enforcement of the Bylaws, Rules and Regulations, and Master Deed, and this
Trust.
Notwithstanding any provision of the Master Deed, or the Declaration of Trust of the
Condominium Trust, or of these Bylaws or the Rules and Regulations to the contrary, neither the
Trustees acting in their capacity as such Trustees or acting as representatives of the Unit Owners,
nor any class of Unit Owners shall bring any litigation whatsoever unless a copy of the proposed
complaint in such litigation has been delivered to all of the Unit Owners, and not less than eighty
percent (80%) of all Unit Owners consent in writing to the bringing of such litigation within sixty
(60) days after a copy of such complaint has been delivered to the Unit Owners and specifying as
part of the written consent a specific monetary limitation to be paid as legal fees and costs and
expenses to be incurred in connection therewith, which amount shall be,separately assessed as a
special assessment effective forthwith at the time of said affirmative consent.
Notwithstanding any provisions of the Master Deed, or of the Declaration of Trust of the
Condominium Trust (including, but not limited to, the provisions of Section VII of the
Declaration of Trust of the Condominium Trust) or these Bylaws or the Rules and Regulations, the
provisions of this Paragraph (o) of this Section 1 shall not be amended except by vote of at least
eighty percent (80%) of Unit Owners. The provisions of this paragraph (o) shall not apply to
litigation by the Condominium Trust against Unit Owners with respect to the recovery of overdue
Common Expenses or Special Assessments or to foreclose the lien provided by Chapter 183A,
Section 6, and Chapter 254, Sections 5 and 5A, as amended by 1987 Mass. Acts, Chapter 338 and
1989 Mass. Acts Chapter 341, or to enforce any of the provisions of the Master Deed, or the
Declaration of Trust of the Condominium Trust, or these Bylaws or Rules and Regulations thereto,
or the unit deed, against Unit Owners; and
(p) granting permits, licenses and easements over the common areas and facilities for utilities and
other purposes reasonably necessary or useful for the proper maintenance or operation of the
Condominium project.
200-0060/master deed TrusO 26
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l
2. Common Expenses and Profits
A. Commencing on the date of the recording of the Master Deed, each Unit Owner shall be liable
for Common Expenses and shall be entitled to common profits of the Condominium in the same
proportion as his or her beneficial interest in this Trust bears to the aggregate beneficial interest of
all the other Unit Owners. The Trustees may at any time or times distribute common profits among
the Unit Owners in such proportions. The Trustees shall at 411 times establish and maintain an
adequate reserve fund for the periodic maintenance, repairs and replacement of improvements to
the common areas and facilities and those limited common areas that the Trust may be obligated to
maintain. Such reserve fund shall be funded by regular monthly assessments from regular
assessments for Common Expenses and shall not be deemed to be common profits available for
distribution.
B. In addition to the foregoing (and not in substitution thereof), to ensure that this Trust will have
the funds to meet unforeseen expenditures or to purchase any additional equipment or services, a
working capital fund shall be established equal to at least two (2) months' estimated common
charges for each unit. Any amounts paid into this fund shall not be considered advance payments of
regular assessments. Each unit's share of the working capital fund shall be collected at the time the
sale of the unit is closed or at the time control of this Trust is transferred to the Trustees elected by
Unit Owners other than the Declarant, as set forth in Section III of this Trust, whichever occurs
earlier. When control of this Trust is transferred as set forth in the immediately preceding sentence,
the working capital fund shall be transferred to this Trust for deposit to a segregated fund. During
the term of the Initial Board (or while a majority of the Trustees are the Declarant, or nominees or
designees of the Declarant), the working capital fund, which is the subject of this subsection,
cannot be used to defray the expenses, reserve contributions or construction costs that are the
responsibility of the Declarant in its role as developer of the Condominium or to make up budget
deficits. The Declarant may reimburse itself for these payments from the funds collected at closing
when the unsold units are sold.
C. In addition to the foregoing (and not in substitution thereof), the Trustees may, to such extent as,,
they deem advisable, set aside common funds of the Condominium as additional reserves and may
use the funds so set aside for reduction of indebtedness or other lawful capital purposes, and,
subject to the provisions of Section 4 of these Bylaws, for repair, rebuilding or restoration of the
Condominium, or for improvements thereto, and for replacement of the common areas and
facilities, and other proper contingencies.The funds so set aside shall not be deemed to be common
profits available for distribution.
D. At least thirty (30) days prior to the commencement of each fiscal year of this Trust, the
Trustees shall estimate the Common Expenses expected to be incurred during such fiscal year,
together with reasonable provision for contingencies and reserves, and for the reserve funds
mentioned in Subsection C of this Section 2 and, after taking into account any undistributed
common profits from prior years, shall determine the assessment for Common Expenses to be made
for such fiscal year. The Trustees shall promptly furnish copies of each budget on which such
assessment is based to all Unit Owners and, if requested, to their mortgagees. The Trustees shall
promptly render statements to the Unit Owners for the respective shares of such assessment, and
each Unit Owner thereafter shall pay one-twelfth (1/12) of his or her share of the estimated
200-0060/master deed TrusO 27
Common Expenses monthly in advance on the first day of each month. The Trustees shall not be
obligated to render monthly statements. In the event that, at any time and from time to time, the
Trustees shall determine during any fiscal year that the assessment so made is less than the
Common Expenses actually incurred or to be incurred, including but not limited to provisions for
proper reserve funds, the Trustees shall make a supplemental assessment or assessments and render
statements therefore in the manner aforesaid, and such statements shall be payable and take effect
as set forth in such statements. The Trustees may, in their discretion, provide for payments of such
supplemental assessment statements in monthly or other installments. The Trustees shall have the
authority and the duty to levy and enforce the collection of general and special assessments for
Common Expenses. Notwithstanding the foregoing, the Town of Barnstable, acting through the
Barnstable Housing Authority, shall have the right to review the budget for all common charges to
Affordable Units and may disapprove ineligible items or unreasonable amounts and shall have the
right to approve all documented increases in common charges to Affordable Units. Owners of
Affordable Units shall have full access to all services and amenities provided to other unit owners,
without discrimination. Any fee charged for the use of community amenities, such as meeting
rooms and recreation facilities, other than nominal fees, shall be reduced for owners of Affordable
Units by the same proportion that their common charges are less than the common charges for other
units. The Town of Barnstable may disallow charges to Affordable Units of costs that are
unreasonable.
E. The amount of each such statement, for regular.or supplemental assessments, together with
interest thereon, if not paid when due, at a rate equal to six percent (6%) above the First National
Bank of Boston N.A. prime rate then in effect (but not more than nineteen percent (19%) per
annum), together with all expenses, including attorney fees, incurred by the Trustees in any
proceeding brought to collect such unpaid Common Expenses and assessments, shall constitute a
lien on the unit of the Unit Owner assessed pursuant to the provisions of Section 6 of said Chapter
183A and Sections 5 and 5A of Chapter 254, as amended by 1987 Mass. Acts Chapter 338, 1989
Mass. Acts Chapter 341, 1992 Mass. Acts Chapter 400 and 1993 Mass. Acts Chapter 1, and may be
collected by the Trustees pursuant to said statutes. The Trustees shall take prompt action to collect
any Common Expenses and assessments due from any Unit Owner that remain unpaid for more
than thirty (30) days from the due date thereof, including but not limited to action under the
provisions of Massachusetts General Laws Chapters 183A and 254, as amended by 1987 Mass.
Acts Chapter 338, 1989 Mass. Acts Chapter 341, 1992 Mass. Acts Chapter 400 and 1993 Mass.
Acts Chapter 1. In the event that the Trustees bring an action to foreclose a lien on any unit
pursuant to said statute, the Unit Owner shall pay a reasonable sum for use and occupancy of his or
her unit from the date of foreclosure until the Unit Owner vacates the unit (in.such foreclosure
action, the plaintiff shall be entitled to the appointment of a receiver to collect the same), but
nothing in this sentence shall be deemed to grant any Unit Owner the right to remain in possession
of his or her unit after such foreclosure. The Trustees, acting on behalf of all Unit Owners, shall
have power to purchase such unit at the foreclosure sale and to acquire, hold, lease, mortgage (but
not vote appurtenant to), convey or otherwise deal with the same. A suit to recover a money
judgment for unpaid Common Expenses shall be maintainable without foreclosing or waiving the
lien securing the same. In the event of any suit or foreclosure by the Trustees, the Trustees shall be
entitled to interest at a rate equal to six percent (6%) above the First National Bank of Boston N.A.
prime rate then in effect (but not more than nineteen percent (19%) per annum) and all costs of
collection, suit and foreclosure, including attorney fees. In addition to the lien in favor of the
200-0060/master deed TrusO 28
Trustees for assessments for Common Expenses and assessments, such assessments shall also be
the personal obligation of the Unit Owner at the time the assessment fell due. Notwithstanding
anything to the contrary herein, the Trustees are prohibited from instituting any foreclosure
proceedings against the two (2) affordable units.
F. The Trustees shall promptly provide any Unit Owner, or any Unit Buyer who has a duly
executed Purchase and Sale Agreement for the acquisition pf a unit, or any mortgagee, or the
attorney of any such party, with a written statement of all unpaid Common Expenses due with
respect to such unit, signed and acknowledged in proper form for recording, upon the written
request of such Unit Owner or buyer or mortgagee or attorney. Notwithstanding anything to the
contrary in this Declaration of Trust, including these Bylaws, such statements may be executed by
any two (2) Trustees. Recording such statement in the Barnstable County Registry of Deeds shall
discharge the unit from any lien for any other sums unpaid not enumerated as of the date of such
statement to the extent provided by said Chapter 183A.
G. The Trustees shall expend common funds only for common expenses and lawful purposes
permitted hereby and by the provisions of said Chapter 183A.
H. Any first mortgagee who obtains title to a Condominium unit, pursuant to the remedies provided,
in its mortgage or foreclosure of its mortgage, will not be liable for such unit's unpaid dues,
common charges, or assessments (including interest and costs of collection and legal fees relating
to the collection thereof) that accrue prior to the acquisition of title to such unit by the mortgagee,
provided, however, that notwithstanding the foregoing, such first mortgagee shall be liable for such
unit's unpaid common expenses, costs and attorney fees as provided in subsection (c) of Section 6
of Chapter 183A, as amended by 1992 Mass. Acts Chapter 400 and 1993 Mass. Acts Chapter 1.
The lien for common expense assessments shall not be affected by any sale or transfer of a unit,
except that a sale or transfer pursuant to a foreclosure of a first mortgagee shall extinguish a
subordinate lien for assessments that became payable prior to such sale or transfer, provided,
however, that the lien for common expense assessments shall be affected by the sale or transfer of a
unit to the extent set forth in subsection (c) of Section 6 of Chapter 183A, as amended by 1992
Mass. Acts Chapter 400 and 1993 Mass. Acts Chapter 1. Any such delinquent assessments that
were extinguished pursuant to the immediately preceding sentence may be reallocated and
assessed to all units as a Common Expense. Any such sale or transfer pursuant to a foreclosure
shall not relieve the purchaser or transferee of a unit for liability for, nor the unit from the lien of, _
any assessments made thereafter.
3. Insurance
A. The Trustees shall be required to obtain and maintain, to the extent obtainable, the following
insurance (and to pay premiums thereon as a Common Expense):
(1) fire in with extended coverage (covering other perils normally covered by the standard
extended coverage endorsement) insuring all portions of the building, including the common
areas and facilities of the Condominium, and all of the units and all of the fixtures installed
therein on the date of recording the Master Deed, but not including carpeting, drapes,
fixtures, furniture, furnishings, or other personal property supplied to or installed by Unit
200-0060/master deed Trust3 29
Owners, such insurance covering the interest of the Condominium, the Trustees and all Unit
Owners and their mortgagees, as their interests may appear, in an amount equal to one
hundred percent (100%) of current replacement cost of the building, common areas and
facilities, and units, without deduction for depreciation, with loss payable to the Trustees, as
Insurance Trustees for each Unit Owner and the holder of each unit's mortgage. The named
insured shall be "the Trustees of The School House Pond Condominium Trust, for the use and
benefit of the individual Unit Owners and unit mortgagees." Such insurance shall also
cover all other perils customarily covered with respect to projects similar in construction,
location and use, including all perils normally covered by the standard "all risk" endorsement,
where such is available; w
(2) workers' compensation insurance if the Trustees shall have an employee or employees;
(3) comprehensive general liability insurance covering all common areas and facilities and any
other areas under the supervision of the Trustees, in such amounts and with such coverage as
the Trustees shall from time to time determine, with a combined single limit for both personal
injury, death and property damage,of not less than one million dollars ($1,000,000.00), but at
least covering each member of the Trustees, the managing agent or the manager, if any, and
each Unit Owner and with cross-liability endorsement to cover liabilities of the
Condominium to a Unit Owner, and a severability of interest provision precluding the
insurer's denial of a Unit Owner's claim because of negligent acts by this Trust or other Unit
Owners;
(4) fidelity bonds in blanket form for all officers, directors, Trustees and employees of the Trust
and all other persons handling or responsible for funds administered by the Trust whether or
not they receive compensation for their services. The total amount of fidelity bond coverage
shall not be less than the estimated maximum funds, including reserve funds, in the
custody of the Trust or the management agent, as the case may be, at any given time during
the term of such bond, and, in any event, the aggregate amount shall not be less than a sum
equal to three (3) months' aggregate assessments on all units plus reserve funds, or one and
one-half(1 1/2) times the insured's estimated annual operating expenses and reserves,
whichever is greater.
(i) The fidelity bonds shall name the Trust as an obligee;
(ii) The bonds shall contain waivers by the issuers of the bonds of all defenses based upon the
exclusion of persons serving without compensation from the definition of "employees" or
similar terms or expression;and
(iii) The bonds shall provide that they may not be canceled or substantially modified (including
cancellation for nonpayment of premium) without at least ten (10) days' prior written
notice to the Trust and to the Mortgagees that are listed as scheduled holders of first
mortgages in the insurance policy; and
(5) such other insurance as the Trustees may determine.
200-0060/master deed Trust3 30
Notwithstanding the provisions of Clause (4) of the immediately preceding sentence, the fidelity
bonds set forth in said Clause (4) shall be required only if required under the provisions of
subsection (e) of Section III of this Trust, and not otherwise. All such policies shall provide that
adjustment of loss shall be made by the Trustees and that the net proceeds thereof shall be payable
to the Trustees as Trustee for each Unit Owner and the holder of each unit's mortgage. Each Unit
Owner, by accepting delivery of his or her unit deed, appoints the Trustees as Insurance Trustees
(or any Insurance Trustee or Substitute Insurance Trustee designated by the Trustees) as attorney-
in-fact for the purpose of purchasing and maintaining such insurance, including the collection and
appropriate disposition of the proceeds thereof, the negotiation of losses and execution of releases
of liability, the execution of all documents, and the performance of all other acts necessary to
accomplish such purpose. The Trustees shall periodically reevaluate the amount of public liability
insurance to be carried by them as set forth in clause (3) of this Section 3 to the end that the limits
of such insurance shall not be less than the amounts specified in said clause (3), or not less than
limits of such liability insurance as are carried by other Condominium Unit Owners' Associations in
comparable condominiums in Hyannis, Massachusetts, whichever is higher.
B. All such policies of physical damage insurance shall, insofar as practicable, contain waivers of
subrogation as to any claim against the Trustees, their agents and employees, Unit Owners, their
respective employees, agents and guests, and of any defense based on invalidity arising from the
acts of the insured and shall provide that the insurance will not be prejudiced by any acts or
omissions of individual Unit Owners that are not under the control of the Unit Owner's
association, and shall provide that such policies may not be canceled or substantially modified
without at least ten (10) days' prior written notice to all of the insureds, including all Unit Owners
and mortgagees of units. Recovery thereunder shall not be affected on account of the availability of
proceeds under any policies obtained by individual Unit Owners covering their own units and shall
include a Special Condominium Endorsement (so-called) or its equivalent. Agreed Amount,
Inflation Guard and Construction Code endorsements shall be required if available. A steam boiler
and machinery coverage endorsement shall also be required, which provides that the insurers
minimum liability per accident at least equals the lesser of$2,000,000.00 or the insurance value of
the building housing the boiler or machinery. A certificate of insurance, showing the amount of .
insurance; shall be issued to the owners of each unit, and the original or a certificate thereof shall,
upon request, be delivered to the mortgagee of each unit. The Trustees shall periodically obtain an
independent appraisal of the full replacement value of all portions of the building, including all of
the units and all of the common areas and facilities, and additions, alterations and improvements,
without deduction for depreciation, for the purposes of determining the amount of fire and extended
coverage insurance to be effected pursuant to this Section, and the amount of such insurance shall
in no event be less than the full replacement value so as determined.
C. Subject to the provisions of Section 4 of these Bylaws, insurance proceeds received by the
Trustees shall be held in trust in an identified and segregated fund for the benefit of the.Unit
Owners and all mortgagees of all units. If the cost of restoring the common areas and facilities, or
any unit, is estimated by the Trustees to exceed the sum of one thousand dollars ($1,000.00), then
the Trustees shall give written notice of such loss to all eligible Mortgage Holders and all eligible
Insurers and Guarantors, as herein defined.
200-0060/master deed Trust3 31
r
D. The cost of all such insurance obtained and maintained by the Trustees pursuant to the
provisions of this Section 3 shall be a Common Expense of the Condominium.
E. Any such insurance obtained and maintained by the Trustees pursuant to the provisions of this
Section 3 may have a deductible amount to be determined from time to time by the Trustees (but in
no event shall such deductible amount be greater than the lesser of ten thousand dollars
($10,000.00) or one percent (1%) of the policy face amount), who shall simultaneously specify, in
writing with notice to all Unit Owners, how and by whom the amount of the deductible shall be
paid in the event of a loss.
F. All insurance obtained and maintained by the Trustees shall conform to applicable requirements
of the Federal Home Loan Mortgage Corporation ("FHLMC") and the Federal National Mortgage
Association ("FNMA"), so long as FHLMC or FNMA hold one or more mortgages on units in the
Condominium or any interest therein.
G. Each Unit Owner may carry insurance at his or her own expense for his or her own benefit
insuring, inter alia, his or her carpeting, drapes, fixtures, furniture, furnishings and other personal
property. He or she may also carry insurance for personal liability and loss assessment coverage,
provided that all such policies shall contain waivers of subrogation, and further provided that the
liability of the carriers issuing insurance obtained by the Trustees shall not be affected or
diminished by reason of any such additional insurance carried by a Unit Owner. Each Unit Owner
shall promptly notify the Trustees of all improvements made by him or her to his or her unit the
insurable replacement cost of which exceeds one thousand dollars ($1,000.00), and such Unit
Owner shall pay to the Trustees as an addition to his or her share of the Common Expenses of the
Condominium otherwise payable by such owner any increase in insurance premium incurred by
this Trust that results from such improvement.
H. Nothing shall be done or kept in any unit or in the common areas and facilities that will increase
the rate of insurance on the buildings or the contents thereof without the prior written consent of the
Trustees, unless the Unit Owner responsible for such increase shall agree to pay the amount of such
increase.
4. Rebuilding and Restoration ,
A. In the event of damage to or destruction of the common areas and facilities as a result of fire or
other casualty (unless Subsection F of this Section is applicable), or, in the event of damage to or
destruction of any unit as a result of fire or other casualty, whether or not the common areas and
facilities have been damaged or destroyed (unless Subsection F of this Section is applicable), the
Trustees shall promptly adjust the loss, arrange for the prompt repair or restoration of the same, and
disburse the proceeds of all insurance policies in payment of all costs and expenses actually,
incurred in connection with such repair or restoration in appropriate progress payments and with
appropriate retainage. All insurance proceeds paid to the Trustees as Insurance Trustees on account
of any casualty shall be dedicated first to the repair or restoration of the loss, and any application
of said proceeds by the Trustees on account thereof shall be prior to the application of such
proceeds for any other purposes.
200-0060/master deed TrusO 32
B. In the event that the insurance proceeds are not sufficient to cover the cost of repairs to the
common areas and facilities and the units, the proceeds will be first allocated to the cost of repairs
to the common areas and facilities. The balance, if any, will go to the cost of repairs to the units in
proportion to the cost of all repairs to the respective units as determined by the insurer or by
independent appraisal. To the extent that the proceeds allocated as aforesaid are insufficient to
cover the cost of repairs to the common areas and facilities, the balance of the cost of such repairs
will be assessed against all Unit Owners as a Common Expense. To the extent that the proceeds
allocated as aforesaid are insufficient to cover the cost of repairs to the units, the balance of the cost
of such repairs to each unit will be assessed against all Unit Owners as a Common Expense.
C. Whenever the estimated cost of repair or restoration exceeds, as to any one casualty or
occurrence, on the basis of an independent appraisal, the sum of twenty-five thousand dollars
($25,000.00), then the Trustees shall retain a registered architect or registered engineer, who shall
not be, directly or indirectly, a Unit Owner or an employee or agent of any Unit Owner, or a
Trustee or an employee or agent of any of the Trustees, or the manager, if any, or any employee or
agent of such manager, to supervise the work of repair or restoration. No sums shall be paid by the
Trustees on account of such repair or restoration except upon certification to them by such architect
or engineer that the work for which payment is being made has been completed in a good and
workmanlike manner in accordance with approved plans and specifications and that the estimated
total cost of completion of said repair or restoration, less amounts theretofore advanced, does not
exceed the undisbursed proceeds of insurance as augmented by funds obtained by any assessment
or assessments levied or chargeable to the Unit Owners as a Common Expense.
D. The Trustees may perform emergency work essential to the preservation and safety of the
Condominium, including all parts of the building and the common areas and facilities and the units,
or the safety of persons, or required to avoid the suspension of any essential service to the
Condominium, including all parts of the building and the common areas and facilities and the units,
without having first engaged an architect or engineer, adjusted the loss or obtained proceeds of
insurance. -
E. Subject always to the prior rights of the Unit.Mortgagees, if there shall have been a repair or
restoration pursuant to the foregoing, and the amount of insurance proceeds shall have exceeded the
cost of such repair or restoration, then the excess of such insurance proceeds, if any, shall be added
to the Condominium's reserve fund or,at the option of the Trustees, divided among all the Unit
Owners in proportion to their respective interests in the common areas and facilities.
F. Notwithstanding the foregoing, if as a result of fire or other casualty the loss exceeds ten percent
(10%) of the value of the Condominium, including all parts of the building and the common areas
and facilities and the units prior to the casualty, and (a) If eighty percent (80%) of the Unit
Owners do not agree within one hundred and twenty (120) days after the date of the casualty to
proceed with repair or restoration, then the Condominium, including all units, shall be subject to
partition at the suit of any Unit Owner. Such suit shall be subject to dismissal at any time prior to
entry of an order to sell if an appropriate agreement to rebuild is filed. Subject always to the prior
rights of the Unit Mortgagees, the net proceeds of the partition sale, together with any common
funds, shall be divided in proportion to the Unit Owners' respective undivided ownership in the
common areas and facilities. Upon such sale, the Condominium shall be deemed removed from the
i
200-0060/master deed Trust3 33
provisions of Chapter 183A; (b) If eighty percent (80%) of the Unit Owners agree to proceed with
the necessary repair or restoration, the cost of rebuilding the Condominium, in excess of any
available common funds, including the proceeds of any insurance, shall be a common expense,
provided, however, that if such excess cost exceeds ten percent (10%) of the value of the
Condominium, including all parts of the building and the common areas and facilities and the units,
prior to the casualty, then any Unit Owner who did not so agree may apply to the Superior Court of
Barnstable County, on such notice to the Trustees and Unit Owners as the Court shall direct, for an
order directing the purchase of his or her unit by the Trustees at the fair market value thereof as
approved by the Court. The cost of any such purchase shall be a Common Expense.
5. Condemnation
If more than ten percent (10%) in value of the Condominium is taken under the power of Eminent
Domain, then the taking shall be treated as a casualty loss, and the provisions of Section 4 of these
Bylaws and the provisions of Chapter 183A, Section 17 shall apply. Where one or more units have
been substantially altered or rendered uninhabitable as a result of a partial taking, and the Unit
Owners vote to restore and continue the Condominium pursuant to Section 17 of said Chapter
183A, the Trustees shall have the authority to acquire the remaining portions of such units for such
price as the Trustees shall determine, provided that any Unit Owner of such remaining portion who
does not agree with such determination may apply to the Superior Court of Barnstable County, on
such notice to the Trustees and the other Unit Owners as the Court shall direct, for an order
directing the purchase of such remaining portion at the fair market value thereof as approved by the
Court. Where, as a result of a partial taking, any unit is decreased in size or where the number of
units is decreased by a partial taking, then the Trustees may make such provision for realignment of
the percentage interest in the common areas and facilities as shall be just and equitable.
In the event of a total or partial taking under the powers of eminent domain, the Unit Owners shall
be represented by the Condominium acting through the Trustees. In the event of a partial taking, the
award shall be allocated to the respective Unit Owners according to their undivided interest in the
common areas and facilities, except as to such portion or portions of the award that are attributable
to direct or consequential damages suffered by particular units as determined by the Court, which
shall be payable to such Unit Owners or their mortgagees, as their interests may appear. Subject
always to the prior rights of the Unit Mortgagees, in the case of a total taking of all units and the
common areas and facilities, the entire award shall be payable to the Trustees to be distributed to
the Unit Owners and their mortgagees in accordance with their respective percentage interests in
the common areas and facilities.
6. Improvements
If fifty percent (50%) or more but less than eighty percent (80%) of the Unit Owners agree to make
an improvement to the common areas andfacilities, the cost of such improvement shall be borne
solely by the Unit Owners so agreeing._
7. Rules and Regulations
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200-0060/master deed TrusO
A. The Trustees have adopted the initial Rules and Regulations set forth on Exhibit B, which is
annexed hereto and hereby incorporated herein by this reference and made a part hereof,
governing the details of the operation and use of the common areas and facilities and containing
such restrictions on, and requirements respecting the use and maintenance of, the common areas
and facilities as are consistent with the provisions of the Master Deed and designed to prevent
unreasonable interference with the use by the Unit Owners of the common areas and facilities.
B. The Trustees shall administer such Rules and Regulations.
C. The Trustees may at any time and from time to time amend, rescind and waive any or all such
Rules and Regulations. However any such modification which is contrary to or inconsistent with
the provisions of the Comprehensive Permit issued by the Barnstable Zoning Board of Appeals or
the Regulatory Agreement and Declaration of Restrictive Covenants by and between the Declarant
and the Town of Barnstable, as referenced and described above in Section 7 shall not be of any
force or effect unless agreed to, in writing,by the Town of Barnstable.
D. The Trustees may at any time and from time to time adopt other Rules and Regulations
governing the details of the operation and use of the common areas and facilities and containing
such restrictions on, and requirements respecting the use and maintenance of, the common areas
and facilities as are consistent with the provisions of the Master Deed and designed to prevent
unreasonable interference with the use by the Unit Owners of the common areas and facilities.
E. Notwithstanding the foregoing provisions of this Section 7:
(i) The Trustees shall furnish copies of any new rule or regulation, or amendment of any existing
rule or regulation, to the Unit Owners prior to the time when such new rule or regulation, or
amendment, as the case may be, shall become effective; and
(iv) The Unit Owners,by majority vote, may at any time and from time to time rescind, amend or
waive any rule or regulation promulgated by the Trustees (including but not limited to the
initial Rules and Regulations referred to hereinabove); and
(iii) Any waiver, revision, amendment, adoption or enforcement of a rule or regulation whether
by the Trustees or the Unit Owners as hereinbefore set forth, shall be uniformly binding upon
all Unit Owners.
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200-0060/master deed Trust3
8. Meetings
A. The Board of Trustees shall meet annually on the date of the Annual Meeting of the Unit
Owners. Other meetings may be called by any Trustee, and in such other manner as the Trustees
may establish, provided, however, that written notice of each meeting, shall be given at least five
(5) days before such meeting to each member of the Board,of Trustees. A majority of the Trustees
shall constitute a quorum at all meetings. All meetings shall be conducted in accordance with
such rules as the Board of Trustees may adopt.
B. There shall be an annual meeting of the Unit Owners on the first Wednesday of January in each
year at 8:00 p.m. on the Condominium premises or at such other reasonable place and time (not
more than twenty-one (21) days before or after said date) as may be designated by the Board of
Trustees by written notice given to the Unit Owners at least fourteen (14) days prior to the date so
designated. Special meetings of the Unit Owners may be called by them upon the written request of
any Unit Owner. Written notice of any such meeting designating the place, day and hour thereof
shall be given by the Board of Trustees to the Unit Owners at least fourteen (14) days prior to the
date so designated. Special meetings of the Unit Owners may be called by them upon the written
request of any Unit Owner. Written notice of any such meeting designating the place, day and hour
thereof shall be given by the Board of Trustees to the Unit Owners at least fourteen (14) days prior
to the date so designated. At the annual meeting of the Unit Owners, the Board of Trustees shall
submit reports of the management and finances of the Condominium. Whenever at any meeting the
Board of Trustees proposes to submit to the Unit Owners any matter with respect to which approval
of or action by the Unit Owners is necessary or appropriate, the notice of such meeting shall state
and reasonably specify such matter.A quorum of Unit Owners shall consist of a majority in interest
of Unit Owners.
C. Any Trustee or Unit Owner may at any time waive notice of any meeting in writing, and such
waiver shall be deemed equivalent to giving such notice. Attendance at any meeting by a Trustee or
Unit Owner without objection to lack of notice shall constitute a waiver of notice by such Trustee
or Unit Owner. If all of the Trustees are present at any meeting of the Trustees or if all of the Unit
Owners are present at any meeting of the Unit Owners, respectively, no notice shall be required,
and any business may be transacted at such meeting of the Trustees or Unit Owners, respectively.
9. Notices to Unit Owners
Every notice to any Unit Owner required under the provisions hereof, or that may be deemed by the
Trustees necessary or desirable in connection with the execution of the Trust created hereby or that
may be ordered in any judicial proceeding, shall be deemed sufficient and binding if a written or
printed copy of such notice shall be given by one or more of the Trustees to such Unit Owner by
leaving such notice with him or her at his or her residence in the Condominium or by mailing it,
postage prepaid, addressed to such Unit Owner at his or her address as it appears upon the records
of the Trustees, at least five (5) days prior to the date fixed for the happening of the matter, thing or
event of which such notice is given, unless a different period for the giving of such notice is.
specified in these Bylaws.
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200-0060/master deed Trust3
10. Inspection of Books; Reports to Unit Owners
The Trustees shall keep detailed records of their actions, minutes of their meetings, minutes of the
meetings of the Unit Owners, and financial records and books of account of the Condominium,
including a chronological list of receipts and expenditures, as well as a separate account for each
unit, which, among other things, shall contain the amount of each assessment of Common Expenses
against such unit, the date when due, the amounts paid thereon, and the balance remaining unpaid.
Copies of the Master Deed, this Trust and these Bylaws, Rules and Regulations, and floor plans of
the building, as the same may be amended from time to time, shall be maintained at the office of
the Trustees. All of the foregoing records, accounts and documents shall be available for inspection
by Unit Owners, their authorized agents, and lenders, mortgagees, holders, insurers and guarantors
of any mortgage on any unit at all reasonable times. "Available" shall.mean available for
inspection, upon request, during normal business hours or under other reasonable circumstances.
The Trustees shall, as soon as reasonably possible, after the close of each fiscal year, or more often,
if convenient to them, submit to the Unit Owners a report of the operation of the Trustees for such
year, which shall include financial statements in such summary form and in such detail as the
Trustees shall deem proper. Except in the case of fraud, committed by any Trustee, any person
(other than a mortgagee or mortgage insurer or guarantor) who has been furnished with such report
and shall have failed to object thereto by notice in writing to the Trustees, given by registered or
certified mail within a period of sixty (60) days of the date of receipt by him or her, shall be
deemed to have assented thereto. The holders of fifty-one percent (51%) or more of first mortgages
shall be entitled to have an audited statement prepared at their expense within a reasonable time if
one is not otherwise available.
11. Checks and Notes
Checks, drafts and other instruments for the payment of money drawn or endorsed in the names of
the Trustees or of the Trust may be signed by any two (2) Trustees or by any person or persons
(who may be one of the Trustees) to whom such power may, at any time or from time to time, be
designated by not less than a majority of the Trustees. All vouchers for the payment of any
Common Expense shall be approved by not less than two (2) Trustees in each instance.
12. Seal
The Trustees may, at any time or from time to time, at their discretion, adopt a seal circular in form
bearing the name of this Trust and the year in which this instrument was recorded in the Registry of
Deeds, or a common or wafer seal, which shall be valid for all purposes.
13. Fiscal Year
The fiscal year of the Trust shall be the calendar year or such other date as may,from time to time
be determined by the Trustees.
14. Management; Employees
37
200-0060/master deed Trust3
,
A. The Trustees, at their discretion, may,but need not, appoint a real estate management firm or
manager to manage the Condominium at such compensation and upon such terms and conditions as
the Trustees see fit. If such management firm, or manager, is so appointed, the Trustees may
delegate to such firm or manager such duties as are customarily and usually performed by'
Condominium property managers in the Greater Hyannis area, or such duties as the Trustees may
at any time and from time to time,expressly delegate, provided, however, that the duties and ,
.powers, and responsibilities of the Trustees under Sections 1(b), 1(d), I(e), 1(f), 1(g), 1(h), 1(i),
1(k), l(l), 1(m), l(n), l(o), l(p), 2, 3, 41 5, 6, 7, 8A, 12, 15, 16i,23, 29B, 30 and 34 of these Bylaws
shall not be so delegated to anyone whomsoever except the Trustees themselves or to such of the
Trustees as the Trustees shall designate.
B. Notwithstanding anything to the contrary herein, any agreement for professional management of
the Condominium shall provide that the management contract may be terminated without cause and
without payment of a termination fee or penalty on ninety (90) days' written notice or less, and the
term of any such contract shall not exceed three (3) years, except that the term of any such contract, -
entered into at any time during the term of the Initial Board of Trustees shall not exceed six (6)
months. f..
C.When professional management has been previously required by an eligible Mortgage Holder,
any decision to establish self-management by the Trustees shall require the prior consent set forth
in clause (n) of Section (D) of Section 33 hereof.
D. The consent of not less than two (2) Trustees shall be necessary for;hiring and dismissing any
Condominium employees.
15. Use of Units
A. No unit shall be occupied for nonresidential purposes, nor by more than one (1) family unit nor
more than two (2).unrelated persons per bedroom, provided, however, that any of the units may
also be used as an office and/or artist's studio, but only accessory to such residential use and only if
and to the extent such accessory officeIand/or artist's studio use is permitted by applicable zoning
laws. So long as any unit mortgage or interest therein is held by the Federal National Mortgage
Association ("FNMA"), no nonresidential space that is part of the Condominium may constitute, in
FNMA's judgment, an inordinate amount,of space devoted to nonresidential purposes.
B. If any unit or units are used for office and/or artist's studio purposes accessory to such residential
use as set forth in Subsection A hereof, no signs or advertising shall be displayed on the exterior of
the unit or units soused or in any part of the common areas or in or upon any part of the
Condominium except for a nameplate on the mailbox, which shall be no larger than the nameplate
slot on such mailbox. The visitation of business associates, clients and the general public with
respect to such office use shall be substantially infrequent, and not more than one employee who
is not a resident of any unit in the Condominium shall be employed therein (in addition to the
=; r.resident of the unit being used for accessory office use).
n
PIT
,
.: 38 ,
200-0060/master deed Trust3
s
C. Notwithstanding the foregoing, until the Declarant, or their successors-in-title or their nominees
have conveyed all of the units, the Declarant and their successors-in-title or nominees may use one
or more units for a sales office or model and may maintain "For Sale" signs on and in the building.
D. Each Unit Owner shall be obligated to maintain his or her own unit in good order and repair.
E. None of the 8 units (market rate and affordable rate units) may be rented for less than a one-year
term. This condition shall be included within the Master Deed, the unit deeds and association
bylaws. Sub-leasing of any such unit shall, if otherwise permitted,.not be less than one year.
F. No unit shall exceed two bedrooms as.shown on plan. None of the basement area, attic area or
loft shall be used for sleeping purposes or converted into bedroom areas. Loft areas shall remain
open and the half wall sections shall not be enclosed nor closets added within the loft area. This
restriction shall be included within all unit deeds and within the Documents.
16. Use of Common Areas and Facilities
A Unit Owner shall not place or cause to be placed in the common areas and facilities any
furniture, packages or objects of any kind. The stairways shall be used for no purpose other than for
normal transit through them.
17. Attorneys, Accountants, Appraisers
The Trustees may, but need not, engage the services of attorneys, accountants, appraisers,
architects, engineers, and other professionals in connection with their duties as such Trustees, upon
the payment of such fees and upon such other terms and conditions as the Trustees shall decide, and
such fees and other expenses in connection with such employment shall be Common Expenses of
the Condominium. In the absence of fraud, the Trustees shall be protected in reasonably relying
upon the opinion of such attorneys, accountants, appraisers, architects, engineers, or other
professionals engaged by the Trustees pursuant to their duties as such Trustees.
18. Electricity, Other Utilities
Electricity shall be supplied by the public utilities servicing the area in which the Condominium is
located, directly to each unit through separate meters. Each Unit Owner shall be required to pay all
bills and assessments for electricity and other utilities, if any, consumed or used in his or her unit.
19. Violations by Unit Owners
The violation of any rule or regulation adopted by the Trustees, or the breach of any of these
Bylaws, or the breach of any provisions of the Master Deed or of this Trust or for the offending
Unit Owner's Unit Deed shall give the Trustees the right, in addition to any other rights set forth in
these Bylaws, to enjoin, abate or remedy by appropriate legal proceedings, either at law or in
equity, or both, the continuance of any such breach. In addition to the foregoing, and not in
substitution therefore, the Trustees shall have the power to levy fines against Unit Owners for such
violations. No fine may be levied for more than five dollars ($5.00) for any one violation, but each
39 ,. .
200-0060/master deed Trus0
day a violation continues after notice shall be considered a separate violation. Collection of fines
may be enforced against the Unit Owner or Unit Owners involved as if the fines were Common
Expenses owed by the particular Unit Owner or Unit Owners. In the case of persistent violations by
a Unit Owner, the Trustees shall have the power, after notice and a hearing pursuant to Section 34
hereof, to require such Unit Owners to post a bond to secure adherence to said Rules and
Regulations, Bylaws, Master Deed, this Trust, or said Unit Deed.
20. Violation of Law
No noxious or unlawful activity shall be carried on in any unit or in the common areas and facilities
nor shall anything be done therein, either willfully or negligently, that may be or become
unreasonably annoying to the other Unit Owners or occupants. No Unit Owner shall make or
permit any disturbing noises by himself or herself, his or her family, guests, agents, servants,
employees, licensees, or tenants, nor do or permit anything by such persons that will unreasonably
interfere with the rights, comforts or conveniences of other Unit Owners or occupants. For purposes
of this Section, any noise from within a unit that can be heard within another unit shall be deemed a
disturbing noise.
21. Maintenance and Repairs
A. All maintenance and replacement of and repairs to any unit, ordinary or extraordinary other than
to the common areas and facilities contained therein not necessitated by the negligence, misuse or
neglect of such Unit Owner, and to the doors and windows, and to electrical, plumbing, and heating
fixtures within the unit or belonging to the Unit Owner that are not a part of the common areas and
facilities, and the washing of exterior glass of his or her unit shall be done by the Unit Owner at the
Unit Owner's expense, excepting as otherwise specifically provided herein. Each Unit Owner shall
be responsible for all damage to any and all other units and to the common areas and facilities that
his or her failure so to do may engender.
B. All maintenance,and replacements of and repairs to the common areas and facilities as defined
in the Master Deed, and all maintenance, and replacement of and repairs to the exterior walls of the
building and to structural parts of the building and the painting and decorating of the exterior
doors of the building and exterior window sash, shall be made by the Trustees and shall be charged
to each of the Unit Owners as a Common Expense, except to the extent that the same are
necessitated by the negligence, misuse or neglect of a Unit Owner, in which case such expense
shall be charged to such Unit Owner. ,
22. Right of Access: Pass Keys
A. Subject to the provisions of said Chapter 183A, Section 4, Clause (2), the Trustees in' their
capacities as such, and any manager engaged by them, and any persons authorized by the
Trustees or such manager, shall have a right of access to all units in the Condominium, at any time
in case of emergency, and at all other times during reasonable times by prior appointment with each
Unit Owner, for the purpose of making inspections or repairs to either the unit to which such
persons seek access, or to another unit, or to any part of the common areas and facilities.
}
200-0060/master deed TrusO 40
The Trustees or their designated agent shall retain a pass key to each unit, and no Unit Owner shall
alter, change or install any locks without first providing the Trustees or their designated agent with
a pass key with respect to any such changed, altered or new lock.
23. Pets
Ordinary domestic pets may be kept by any Unit Owner, butt no such pets shall be permitted in any
part of the Condominium (other than within the unit of the owner thereof) unless carried or on a
leash. After due notice and hearing, the Trustees may require any Unit Owner to dispose of any pet
that has habitually been guilty of annoying or harassing any Unit Owner or occupant.
24. Structural Integrity
Nothing shall be done or maintained in any unit or in the common areas and facilities that will
impair the structural integrity of any part of the building of the Condominium.
25. No Alterations
Neither the exterior of any unit nor the common areas and facilities nor the hallways or lobby shall
be altered, constructed, removed, decorated or painted in any manner except with the written
consent of the Trustees. Any Unit Owner is free to decorate the interior of his or her unit in any
manner as he or she sees fit without requiring the consent of the Trustees so long as such
decorations do not alter the structure of the unit or the building. Any Unit Owner shall be free to
paint the exterior door or doors (including the exterior door of Unit 1) to his or her unit in any
manner he or she sees fit.
26. Signs
Except only as set forth in Subsection B of Section 15 ("Use of Units") of the Bylaws of this Trust,
no business, professional, commercial or other signs, whether designed for profit, altruism or
otherwise, shall be maintained or permitted on any part of the property, nor shall any "For Sale,"
"For Rent," or "For Lease" sign be permitted thereon except by the Declarant during such time as
the Declarant owns one or more units in the Condominium and except for any Mortgagee who may
become the owner or Mortgagee in possession of any unit, but in no event shall any such sign be
larger'than two (2) square feet.
27. Combustible Materials
No Unit Owner shall permit or suffer to be kept at any time any flammable, combustible or
explosive fluid or substance on the property of the Condominium or in his or her unit except for
such lighting and cleaning fluids as are customary for residential use.
28. Safety
200-0060/master deed Trust3 41
Each Unit Owner assumes complete responsibility for the safety of himself or herself, his or her
family, guests, agents, servants, employees, licensees and tenants while such persons are in his or
her unit, or any other unit or in the common areas and facilities of the Condominium.
29. Sale of Units
A. No Severance of Ownership ,
No Unit Owner shall execute any deed, mortgage, or other instrument conveying or mortgaging
title to his or her unit without including therein the Appurtenant Interests (as hereinafter defined), it
being the intention hereof to prevent any severance of such combined ownership. Any such deed,
mortgage, or other instrument purporting to affect one or more of such interests, without including
all such interests, shall be deemed and taken to include the interest or interests so omitted, even
though the latter shall not be expressly mentioned or described therein. No part of the Appurtenant
Interests of any unit may be sold, transferred, or otherwise disposed of, except as part of a sale,
transfer, or other disposition of the unit to which such interests are appurtenant, or as part of a sale,
transfer, or other disposition of such part of the Appurtenant Interest of all units. As used herein,
"Appurtenant Interests" shall include
(i) the undivided interest of a Unit Owner in the common areas and facilities; and
(ii) the interest of such Unit Owner in any other assets of this Trust, but the foregoing language
shall not hinder or prevent any Unit Owner from conveying an easement or easements for the
exclusive use of a Parking Space to another Unit Owner(s), and all easements so conveyed shall not
be included in the term "Appurtenant Interests."
B. Financing of Purchase of Units by Trustees
With the prior written approval of at least seventy-five percent (75%) of the beneficial interests
hereunder (the vote of the Unit Owner of the unit that is the subject of such vote shall not be
counted), the Trustees may acquire or lease units of the Condominium. Acquisition or lease of units
by the Trustees may be made from any funds in the hands of the Trustees or, if such funds are
insufficient, the Trustees may levy an assessment.against each Unit Owner in proportion to his or "
her beneficial interest as a Common Expense; or the Trustees, in their discretion,may borrow
money to finance the acquisition of such units, provided, however, that no financing may be
secured by an encumbrance or hypothecation of any property other than the specific unit or units
with Appurtenant Interests so to be acquired by the Trustees. Nothing in this Subsection (B) of this
Section shall be construed as compelling any Unit Owner to sell his or her unit. Nothing in this
Subsection (B) of this Section shall have any effect, nor limit in any manner the rights and remedies
of the Trustees under the provisions of Section 6 of Chapter 183A or under the provisions of
Subsections A and B of Section 2 hereof.
C. Waiver of Right of Partition
In the event that a unit shall be acquired by the Trustees, all Unit Owners shall be deemed to have
waived all rights of partition with respect to such unit or units as are acquired by the Trustees.
200-0060/master deed TrusO 42
D. Payment of Assessments
No Unit Owner shall convey, mortgage, pledge, hypothecate, sell or lease his or her unit unless and
until he or she shall have paid in full to the Trustees all unpaid Common Expenses, theretofore
assessed by the Trustees against his or her unit and until he or she shall have satisfied all unpaid
liens against such unit. This paragraph shall not apply to any first mortgagee of any unit.
30. Tenants
Any Unit Owner may lease or rent his or her unit, subject, however, to the following conditions:
A. Any lease or occupancy agreement shall:
(i) be in writing and apply to the entire unit and not merely a portion thereof;
(ii) be for a term of at least one (1) year. Any subleasing of a unit shall also be for a term of at
least one (1) year and shall include and be subject to all of the provisions set forth herein.,
z
(iii) expressly provide that the lease or occupancy agreement shall not be inconsistent with the
Master Deed of the Condominium, the Declaration of Trust of the Condominium Trust, and
the Bylaws and Rules and Regulations thereof, as the same have been amended most
recently prior to the execution of the lease or occupancy agreement;
B. In leasing his unit, the Unit Owner shall:
(i) make reasonable efforts, at his or her expense and upon his or her initiative to inform rental
agents of the provision of this section and shall, at his or her own expense, and upon his or ry
her own initiative, furnish copies of the Condominium documents to the tenant and cause the
lease or occupancy agreement to be prepared in conformity with the provisions of this <
Section.
(ii) provide a true copy of the'lease or occupancy agreement shall be delivered to the Trustees
forthwith upon its execution.
Notwithstanding anything to the contrary in this Section,it is expressly understood and agreed that,
the provisions of this Section 30 shall not apply to the Declarant nor to any first mortgagee in
possession of a unit following default by the Unit Owner in his or her mortgage or holding title to a
unit by virtue of a mortgage foreclosure proceeding or deed or other agreement in lieu of
foreclosure.
a
31. Nondiscrimination,:
v
Notwithstanding anything to the�contrary herein,'no part of this Trust or these Bylaws or the Rules:-
and Regulations now or hereafter adopted or promulgated (including but not limited.to the,
provisions of Section 30) shall ever be deemed to prevent, restrict, discourage, or hinder, in fact, in
{• 200-0060/master deed Trust3 43
mortgage, urchase sale rental lease license
an manner whatsoever, the alienation, conveyance, ,
YP
use, or occupancy of units or any negotiations in connection therewith because of race, religion,
creed, color, national origin, sex, sexual preference, age, ancestry, marital status, blindness, status
as a veteran or member of the armed services, membership in any ethnic group, or by reason of the
fact that children will occupy such unit, receipt of public assistance, or, in addition to the foregoing,
by any reason whatsoever prohibited by any federal, state, county or municipal law.
32. Percentage of Unit Owners y -
Whenever the term 'Percentage of Unit Owners" or 'Percentage of Units" is used in this'
instrument, it shall mean the owners of the specified percentage in the aggregate in interest of the
undivided ownership in the common areas and facilities of the Condominium.
33. PROTECTION OF MORTGAGEES; FEDERAL HOME LOAN MORTGAGE
CORPORATION; FEDERAL NATIONAL MORTGAGE ASSOCIATION
A. Definitions
(i) The term "FHLMC" means Federal Home Loan Mortgage Corporation.
(ii) The term "FNMA" means Federal National Mortgage Association.
(iii) The term "eligible Mortgage Holder" means a holder of a first mortgage on a unit who has
requested notice of certain matters from this Trust as set forth in these Bylaws.
(iv) The term "eligible Insurer or Guarantor" means an insurer or governmental guarantor of a first
mortgage who has requested-notice of certain matters as set forth in these Bylaws.
(v) The term "Constituent Documents" means, collectively, the Master Deed, this Trust and the
Bylaws and Rules and Regulations thereto and the Master Plans.
B. Prohibitions
Notwithstanding anything to the contrary in.the Constituent Documents: .
(i) There shall be no restriction upon any Unit Owner's right of ingress or egress to his or her unit,
which right shall be perpetual and appurtenant to the ownership of the unit.
(i i) Except with respect to the Affordable Units as designated in the Master Deed, there shall be no
restriction on the right of a Unit Owner to sell, transfer or otherwise convey his or her unit.
There shall be no "right of first refusal" so-called or any similar restriction.
(iii) There shall be no restriction_ on the right of any Unit Owner to mortgage or otherwise
encumber his or her unit.
(iv) The Condominium shall not be subject to "expansion" or "phases," so-called.
44
200-0060/master deed Trust3
Q
a
(v) Prior to the passage of control of this Trust to consumer unit purchasers, no contract or lease
(including management contracts) shall be entered into unless this Trust is provided with a
right of termination of any such contract or lease with or without cause, exercisable without
penalty at any time after transfer of control, upon not more than 90 days' notice to the other `.
party thereto.
4
(vi) The Constituent Documents shall not be amended or modified if the result of any such
amendment or modification would:
(vii) add a "right of first refusal" so-called; or
(viii) permit an addition or expansion to the Condominium project in which sections or phases are
established.
C. Rights of Eligible Mortgage Holders and Eligible Insurers or Guarantors
Notice of Action: Upon written request to this Trust identifying the name and address of the. .' a
mortgage holder, insurer or guarantor and the unit number or address, any first mortgagee and any
such eligible Mortgage Holder or eligible Insurer or Guarantor will be entitled to timely written
notice of:
(i) any condemnation loss or any casualtyloss that affects either a material portion of the project
or any unit on which there is a first mortgage held, insured, or guaranteed by such eligible
mortgage holder or eligible insurer or guarantor, as applicable;
(ii) any delinquency in the payment of assessments or charges owed, or default in the performance
by the borrower of any obligation under the Condominium Constituent Documents, by an
owner of a unit subject to a first mortgage held, insured or guaranteed by such first Mortgage _
Holder or eligible holder or eligible Insurer or Guarantor, which remains uncured for a
,
period of 60 days;
(iii) any lapse, cancellation or material.modification of any insurance policy or fidelity bond
maintained.by the Trust; and
(iv) any proposed action that would'require the consent of a specified percentage of eligible ;..
mortgage holders. R
D. Amendment to Documents
_ w
(i) Where Unit Owners are considering termination of the legal status of the project for reasons
other than substantial destruction or condemnation of the property, the consent of
owners of units to which at least sixty-seven percent (67%) of the votes in this Trost are
allocated and the approval of eligible Mortgage Holders representing at least sixty-seven
percent (67%) of the votes'of the mortgaged units shall be required to terminate the legal status
of the project as a Condominium.
r 200-0060/master deed Trust3. 45
. 3-
(ii) The consent of the owners of units to which at least sixty-seven percent (67%) of the votes in
this Trust are allocated, and the approval of at least fifty-one percent (51%) of the eligible
Mortgage Holders (based on one vote for each unit subject to a mortgage held by an eligible
Mortgage Holder), shall be required to add or amend any material provisions of the constituent
documents of the project, which establish, provide for, govern or regulate any of the
following: ,
(a) voting rights;
(b) assessments, assessment liens or subordination of such liens;
(c) reserves for maintenance, repair and replacement of the common areas;
(d) insurance or fidelity bond requirements;
(e) rights to use the common areas;
(f) responsibility for maintenance and repairs;
(g) expansion or contraction of the project or the addition, annexation or withdrawal of property
to or from the project;
(h) definitions of unit boundaries;
(i) interests in the general or limited common areas;
(j) convertibility of units into'common areas or of common areas into units;
(k) leasing units;
(1) reallocation of interests in the general or limited common areas or rights to their use;
(m) a decision by the Trust to establish self-management when professional management had
been required previously by an eligible Mortgage Holder;
(n) imposition of any restrictions on a Unit Owner's right to sell or transfer his or'her unit;
(o) restoration or repair of the project (after hazard damage or partial condemnation) in a
manner other than that specified in the Condominium Constituent Documents;
(p) any action to terminate the legal status of the project after substantial destruction or
condemnation occurs; or
(q) any provisions that are for the express benefit of Mortgage Holders, eligible Mortgage
Holders or eligible Insurers or Guarantors of mortgages on units.
200-0060/master deed TrusO 46
F
C
(iii) An addition or amendment to such documents shall not be considered material if it is for the
purpose of correcting technical errors or for clarification only. An eligible Mortgage Holder
who receives a written request to approve additions or amendments that are not material who
does not submit a response to the requesting party within thirty (30) days after the request is
made shall be deemed to have approved such request. Additionally, if specifically provided by
any applicable FNMA regulation, implied approval of any addition or amendment may be
assumed when an eligible Mortgage Holder fails to submit a response to any written proposal
for an amendment within 30 days after the proper notice of the proposal is received, provided
the notice has been delivered to the Mortgage Holder by certified or registered mail, return
receipt requested. This clause (iii) shall not apply to FHLMC.
E. Right of Action
This Trust and any aggrieved Unit Owner shall have a right of action against Unit Owners for
failure to comply with the provisions of this Trust and the Bylaws and Rules and Regulations
thereto, the Master Deed, the Master Plans and each unit deed and unit plan, and with decisions of
the Trustees of this Trust. Each Unit Owner shall have a similar right of action against this Trust.
Any such action may be brought in any court of competent jurisdiction.
F. First Mortgagee Obtaining Title
Except as otherwise provided in Chapter 183A, any first mortgagee who obtains title to a
Condominium unit pursuant to the remedies provided in the mortgage or foreclosure of the
mortgage will not be liable for such unit's unpaid dues or charges that accrue prior to the
acquisition of title to such unit by the mortgagee.
G. Additional Prohibitions
Except as provided by statute in case of condemnation or substantial loss to the units and/or
common elements of the,.Condominium project, unless at least two-thirds (_) of the first
mortgagees (based upon one vote for each first mortgage owned) or owners (other than the sponsor,
developer or builder) of the individual Condominium units have given their prior written approval,
this Trust shall not be entitled to:
(i) By act or omission, seek to abandon or terminate the Condominium project;
(ii) Change the pro rata interest or obligations of any individual Condominium unit for the purpose
of(1) levying assessments or charges or allocating distributions of hazard insurance
proceeds or condemnation awards or (2) determining the pro-rata share of ownership of each
Condominium unit in the common elements;
(iii) Partition or subdivide any Condominium unit;
(iv) By act or omission, seek to abandon, partition, subdivide, encumber, sell or transfer the
common elements. (Granting easements for public utilities or for other public purposes
200-0060/master deed Trust3
47
x
w
consistent with the intended use of the common elements by the Condominium project shall
not be deemed a transfer within the meaning of this clause);
(v) Use hazard insurance proceeds for losses to any Condominium property (whether to units or
to common elements) for other than the repair, replacement or reconstruction of such
Condominium property;
(vi) No provisions of the constituent documents shall give any Unit Owner or Owners or any other
party or parties priority over any rights of first mortgagees of Condominium units pursuant to
their mortgages in the case of a payment to Condominium Unit Owners of insurance proceeds
or condemnation awards for losses to or taking of Condominium units and/or,common areas
and facilities.
H. Vote or Consent
The right of any Unit Owner to vote or grant or withhold any consent or exercise any rights
pursuant to the provisions of this Trust or the Master Deed may be assigned to or restricted in favor
of any mortgagee. The Trustees shall be bound by such assignment or restriction, provided,
however, that such assignment or restriction does not conflict with the provisions of said Chapter
183A and that the mortgagee has notified the Trustees.of such assignment or restriction in writing.
I. Information
The Trust shall promptly deliver the following information, in writing, to any mortgagee, mortgage
holder, mortgage servicer,FHLMC or FNMA, requesting same, without expense to the requesting
party:
(i) notification of any default in the performance by the individual unit borrower of any obligation
under the Condominium Constituent Documents that is not cured within sixty (60) days;
(ii) a written certification as to whether the owner of any unit encumbered by a mortgage held or
serviced, in whole or in part, by the requesting party, is more than one (1) month
delinquent in the payment of Condominium common area charges or assessments;
(iii) written certification as to the percentage of Unit Owners who are more than one (1) month
delinquent in paying Condominium common area charges or assessments; and
(v) a statement to the best of the Trust's knowledge as to the percentage of units that have been
sold and conveyed to bona fide purchasers (who have closed or who are legally obligated to
close) and the percentage of units that are occupied by individual Unit Owners as their primary
year-round residence.
J.FHLMC; FNMA
The provisions of this Section 33 are set forth so that the Condominium will comply with the
requirements of FHLMC and FNMA, and the provisions of this Section 33 shall be construed and
200-0060/master deed TrusO 48
}
a
interpreted in accordance with that intention. Notwithstanding anything to the contrary in the
Constituent Documents, the provisions of this Section 33 shall at all times take precedence over all
other provisions in the Constituent Documents, and this Section 33 shall not be amended or
modified without the express prior written consent of FHLMC and FNMA, except as expressly
provided in the immediately following sentence. In the event that, at any time and from time to
time, applicable Rules and Regulations of FHLMC or FNMA are changed or modified, then and in
any such event or events, the prohibition contained in the immediately foregoing sentence shall be
deemed to be changed and modified so as to permit the amendment and modification of the
Constituent Documents so that the Constituent Documents shall comply with such changed or
modified Rules and Regulations of FHLMC or FNMA, or both.
34. Right to Notice and Hearing
A. Whenever these Bylaws require that an action be taken after "Notice and Hearing," the
following procedure shall be observed: All hearings shall be conducted by at least a majority of
the Trustees. The Trustees shall give written notice of the proposed action to all Unit Owners or
occupants of Units whose interest would be significantly affected by the proposed action. The
notice shall include a general statement of the proposed action and the date, time and place of
the hearing. At the hearing, the affected person shall have the right, personally or by a
representative, to give testimony.orally, in writing, or both, subject to reasonable rules of
procedure established by the Trustees to ensure prompt and orderly resolution of the issues. The
affected person shall have the right to question the Trustees and any witnesses with respect to
the subject matter of the hearing. If the hearing involves an alleged breach by the affected
person of any provision of the Master Deed, the Condominium Trust, or the Bylaws and Rules
and Regulations thereto, or any unit deed, the affected person shall be informed with specificity
of the exact nature of the violation and of the provision that he or she has allegedly violated,
and the affected person shall have the right to question any witness to such alleged violation.
The Trustees need not comply with the strict legal rules of evidence observed by courts, but
they shall consider only such evidence as reasonable people customarily consider in making
important decisions. Nothing herein shall be deemed to limit the right of the Trustees, the
affected person, or any affected Unit Owners or occupants to bring legal action with respect to
the subject matter of any hearing or any decision of the Trustees.
B. When the subject matter of the hearing is Section III(d)(ii) of the Declaration of Trust, the
reference to Trustees as the persons conducting the hearing shall be deemed to mean Unit
Owners entitled to at least fifty-one percent (51%) of the beneficial interest under this Trust.
200-0060/master deed Trust3 49
a '
Exhibit B
Exhibit B is hereby incorporated into and made a part of the Bylaws of SCHOOL HOUSE POND
CONDOMINIUM.
RULES AND REGULATIONS OF SCHOOL HOUSE POND CONDOMINIUM TRUST
No Obstruction of Common Areas and Facilities
No one shall unreasonably obstruct any part of the common areas, facilities or hallways, without
prior consent of the Trustees.
No Articles in Common Area
No clothes, sheets, blankets, laundry or other articles shall be hung out of a unit or exposed on any
part of the common areas and facilities.
Toys, Baby Carriages, Etc.
No baby carriages, toys, playpens, bicycles, velocipedes, benches, chairs or other articles shall be
placed on any part of the common areas and facilities except when such articles are in actual use by .
a Unit Owner, or his or her family or guests.
No Liability for Personal Property of Unit Owners
All personal property of the Unit Owners or any other occupant of a unit, whether in the units, in
the common areas and facilities, in the Parking Spaces or elsewhere on the Condominium property,
shall be kept therein at the sole risk and responsibility of the respective Unit Owner or occupant,
and the Trustees shall have no responsibility therefor.
Radios, Phonographs, Musical Instruments r .
The volume of television sets, radios,-phonograph s,.high fidelity sound reproduction devices,
musical instruments, etc., shall not be operated in any manner that would result in sounds
emanating therefrom being heard in any other unit.,
No Offensive Activity
No noxious or offensive activity shall be carried on in the common areas and facilities, nor shall
anything be done therein either willfully or negligently that may be or become an annoyance or
nuisance to the other Unit Owners or occupants:,No Unit Owner shall do or permit anything to be
done by his or her family, servants, employees, agents or visitors that will interfere with the rights,
comforts or conveniences of other Unit Owners or occupants. No public hall shall be decorated or
furnished by any Unit Owner in any manner.
200-0060/master deed TrusO 50
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r
Trash
All garbage and trash must be placed in the proper receptacles designed for refuse collection, and
no garbage or trash shall be placed elsewhere in any of the common areas and facilities.
Exterior Apparatus
Under no circumstances shall any air-conditioning apparatus, television or radio antennas, clothes
line, clothes rack or any other such device,or other items, be installed on the exterior of any unit, or
on the common areas and facilities or be permitted to be hung out of a unit.
Damage
Any damage to any building, equipment or common areas and facilities caused by a Unit Owner or
such Unit Owner's family, visitor, or pet shall be repaired at the expense of the Unit Owner..
Doors
Unit doors opening into public halls and building entry doors shall be kept locked and secured at all
times except when actually in use.
Complaints
Complaints regarding the management of the Condominium or maintenance of the common areas
and facilities, or regarding actions of other Unit Owners or occupants shall be made in writing to
the Trustees. No Unit Owner shall attempt to direct, supervise or in any manner attempt to control
or request favors of any employee of the Trust.
200-0060/master deed TrusO 51