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CHARLES D.BAKER EDWARD A.PALLESCHI
GOVERNOR UNDERSECRETARY OF
CONSUMER AFFAIRS AND
BUSINESS REGULATION
KARYN E.POLITO Commonwealth of Massachusetts CHARLES BORSTEL
LIEUTENANT GOVERNOR COMMISSIONER,DIVISION OF
Division of Professional Licensure PROFESSIONAL LICENSURE
MIKE KENNEALY Office of Public Safety and Inspections THOMAS HOPKINS
SECRETARY OF HOUSING AND EXECUTIVE DIRECTOR
ECONOMIC DEVELOPMENT Architectural Access Board
1 Ashburton Place, Rm 1310 • Boston • Massachusetts • 02108
V: 617-727-0660• www.mass.gov/aab • Fax: 617-979-5459
APPLICATION FOR VARIANCE Docket:
(Staff Only)
INSTRUCTIONS:
1) Answer all questions on this application to the best of your ability.
a. Information on the Variance Process can be found at:
https://www.mass.gov/quides/applying-for-an-aab-variance.
2) Attach whatever documents you feel are necessary to meet the standard of
impracticability laid out in 521 CMR 4.1. You must show that either:
a. Compliance is technologically infeasible, or
b. Compliance would result in an excessive and unreasonable cost without any
substantial benefit for persons with disabilities.
3) Please ensure that attached documents are no larger than 11" x 17".
4) Sign the Application.
5) If the applicant is not the owner of the building or his or her agent, include a signed
letter from the owner granting permission for you to apply for variance.
6) Burn copies of the application and all attached documents onto a Compact Disc (CD
or DVD only, no flash drives will be accepted).
7) Provide full copies of the application and all attached documentation, on both Paper
and CD/DVD to the:
a. Local Building Department,
b. Local Commission on Disability (if applicable in the town where the project
is located) (A list of all active Disability Commissions can be found at:
https:/Iwww.mass.gov/commissions-on-disability), and
c. The Independent Living Center (ILC) for your area.
(Your ILC can be found at: http://www.masilc.org/findacenter.)
8) Provide to the Board:
a. A completed copy of the application and all attached documents,
b. A copy of the CD/DVD,
c. The completed, signed, and notarized Service Notice (included as Page 5 of
this application).
d. A check or money order in the amount of$50 dollars, made out to the
Commonwealth of Massachusetts.
In accordance with M.G.L., c.22, § 13A, I hereby apply for modification of or substitution for the
rules and regulations of the Architectural Access Board as they apply to the building/facility
described below on the grounds that literal compliance with the Board's regulations is
impracticable in my case.
1. State the name and address of the building/facility:
Everleigh Cape Cod 265 Communication Way, Barnstable MA, 02601
(Formerly Village of Barnstable)
2. State the name and address of the owner of the building/facility:
GS Barnstable AA Apartments, LLC
E-mail: Morgan.Pierson@Greystar.com
Telephone: 781-385-9417
3. Describe the facility (i.e. number of floors, type of functions, use, etc.):
5 Floors, 225 Residential Units, including an U.G. parking Garage. Use groups A-2, A-3, B,
R-2, S-2
4. Total square footage of the building: 365,885 SF Per floor: Avg: 91,471 sf
a. total square footage of tenant space (if applicable):
5. Check the work performed or to be performed:
X New Construction Addition
Reconstruction/Remodeling/Alteration Change of Use
6. Briefly describe the extent and nature of the work performed or to be performed (use
additional sheets if necessary):
1) Group 2 units have refrigerators installed that are shown on attachment, which is shown
as ADA compliant. Thr refrigerator is French door unit with a freezer below, and the pull is
shown within the typical reach range.
2) Installation of unit signage installed at 48" A.F.F. on latch side of the door.
7. Are you seeking temporary relief? Yes No X
a. If temporary relief if sought, what is the proposed deadline?
8. State each section of the Architectural Access Board's Regulations (521 CMR) for which a
variance is being requested
(Please note the Board will NOT consider requests for relief from Section 3, please list
the specific items triggered by Section 3 where relief is being sought):
SECTION NUMBER LOCATION OR DESCRIPTION
45.10 Group 2A 521 CMR, MAAB
41.2.2 521 CMR, MAAB
If requesting relief to 5 or more sections, use the Large Variance Tally Sheet available on the
"Forms and Applications"page of the Board's website (http://www.mass.gov/aab)
Page 2 of 5 Rev,3/19
i
9. Is the building historically significant? yes X no. If no, go to number 10.
9a. If yes, check one of the following and indicate date of listing:
National Historic Landmark
Listed individually on the National Register of Historic Places
Located in registered historic district
Listed in the State Register of Historic Places
Eligible for listing
9b. If you checked any of the above and your variance request is primarily based upon
the historical significance of the building, you must complete the ADA Consultation
Process of the Massachusetts Historical Commission, 220 Morrissey Boulevard, Boston,
MA 02125.
10. For each variance requested, state in detail the reasons why compliance with the Board's
regulations is impracticable (use additional sheets if necessary), including but not limited
to: the necessary cost of the work required to achieve compliance with the regulations (i.e.
written cost estimates); and plans justifying the cost of compliance.
1)Group 2A unit refrigerators were purchased and installed with the understanding that the
cut sheet indicated they were ADA compliant and that the freezer drawer pull is within the
_MAAB reach range.
2) Unit Entry door trim and light sconce do not allow the unit signage to be installed at the
60" A.F.F. at some of the corner units.
11. Which section of the Board's Jurisdiction (see Section 3 of the Board's Regulations) has been
triggered?
3.2 X 3.3.1 a 3.3.1 b 3.3.2 3.4 Other (List Section)
12. List all building permits that have been applied for within the past 36 months, include the
issue date and the listed value of the work performed:
Permit# Date of Issuance Value of Work
#B-17-2157 8/15/17 $25,370,351.15
(Use additional sheets if necessary.)
13. List the anticipated construction cost for any work not yet permitted:
All work has been permitted
14. Has a certificate of occupancy been issued for the facility? Yes No—X
If yes, state the date it was issued:
15. To the best of your knowledge, has a complaint ever been filed on this building relative to
accessibility? Yes No X
a. If so, list the AAB docket number of the complaint
16. For existing buildings, state the actual assessed valuation of the BUILDING ONLY, as
recorded in the Assessor's Office of the municipality in which the building is located:
N/A
Is the assessment at 100%? N/A
If not, what is the town's current assessment ratio N/A
17. State the phase of design or construction of the facility as of the date of this application:
85% Complete Finishes ongoing on all floors of the facility
Page 3 of 5 Rev,3/19
18. State the name and address of the architectural or engineering firm, including the name of
the individual architect or engineer responsible for preparing drawings of the facility:
The Architectural Team, Inc.
E-mail: tschultz@architecturalteam.com; bcooke(cbarchitecturalteam.com
i
Telephone: 617-889-4402
19. State the name and address of the building inspector responsible for overseeing this
project:
Ed Bowers, 200 Main Street, Hyannis MA, 02601
E-mail: Edwin.Bowers(aD-town.barnstable.ma.us
Telephone: 508-862-4038
Date: 4/4/2019
Signature of owner or authorized agent (required)
PLEASE PRINT:
Betsy Cooke
Name
The Architectural Team, Inc.
Organization (If Applicable)
50 Commandants way,
Address
Address 2 (optional)
Chelsea MA 02150
City/Town State Zip Code
bcooke(c_architecturalteam.com
E-mail
617-889-4402
Telephone
Page 4 of 5 Rev,3/19
SERVICE NOTICE
I, Betsy Cooke , as architect
(name) (relationship to the applicant)
for the Petitioner Greystar submit a
(name of the applicant)
variance application filed with the Massachusetts Architectural Access Board on 4/4/2019
(date variance submitted)
HEREBY CERTIFY UNDER THE PAINS AND PENALTIES OF PERJURY THAT I SERVED OR
CAUSED TO BE SERVED, A COPY OF THIS VARIANCE APPLICATION ON THE FOLLOWING
PERSON(S) IN THE FOLLOWING MANNER:
NAME AND ADDRESS OF PERSON OR AGENCY METHOD OF DATE OF
SERVED SERVICE SERVICE
Barnstable Building Department
Building 200 Main Street Mail 4/4/2019
Department. Hyannis, MA 02601
2 Barnstable Disability Commission
Local Barnstable Town Hall Mail
Commission 367 Main Street 4/4/2019
on Disability .
(If Applicable) Hyannis, MA 02601
3 Cape Organization for the Rights of
Independent the Disabled Mail 4/4/2019
Living 106 Basset Lane
Center Hyannis, MA 02601
AND CERTIFY UNDER THE PAINS AND PENALTIES OF PERJURY THAT THE ABOVE
STATEMENTS TO THE BEST OF MY KNOWLEDGE ARE TRUE AND ACCURATE.
Signature: Appellant or Petitioner
On the Day of 20
PERSONALLY APPEARED BEFORE ME THE ABOVE NAMED
(Type or Print the Name of the Appellant)
NOTARY PUBLIC MY COMMISSION EXPIRES
Page 5 of 5 Rev,3/19
f
Before you send in your application, have you:
❑Answered all questions on the application;
❑Signed the application and included up to date contact info;
❑Obtained a letter from the owner of the building permitting you to seek
variance;
❑Made a copy of your entire application, including all attached
documents, on CD or DVD;
■ Flash drives are not permitted.
❑Sent copies of the completed application, all attached documents, and
CD/DVD to:
❑The local Building Department,
❑The local Commission on Disability, and
❑The Independent Living Center (ILC) for the region in which the
property is located;
❑Filled out the Service Notice (page 5 of the application) including all
parties and the method and date of service for each, and had it signed
and notarized; and
❑Included a $50 check made out to the "Commonwealth of
Massachusetts".
Please Note: The Board has instituted a zero-tolerance policy for incomplete
applications,failure to follow these instructions (as found on page 1 of the
application) will result in the Application being returned to you via regular mail.
GE APPLIANCES.
a Haler.company
� Model#: GFE24JSKSS
GE® ENERGY STAR® 23.8 Cu. Ft.
,1 2,
French-Door Refrigerator
f.k��}
Approx Dimensions (HxDxM:
;t � r 69 7/8 in X 37 1/2 in X 32 3/4 in
• 33"wide-
•Tall, external ice and water dispenser with
Y R'r f
temperature display - Makes and stores ice on the
Q -r door, saving space
• LED lighting - Find exactly what you've been
looking for under crisp, clear lighting
•Two humidity-controlled drawers and 1 full-width
' adjustable-temperature drawer-
m � ` •Advanced water filtration uses MWF replacement
.. filter- Reduces trace pharmaceuticals from water
and ice* {* Removes 98% of ibuprofen, atenolol,
fluoxetine, progesterone and trimethoprim. These
pharmaceuticals are not necessarily in all users'
water)
•Turbo Cool setting - Drops interior temperature to
maintain freshness after frequent openings
• Quick Space shelf- Quickly slides out of the way to
make room for tall items
Warranty Information:
• Parts Warranty : Limited 1-year entire appliance
• Labor Warranty : Limited 1-year entire appliance
•Warranty Notes : See written warranty for full
details
Also Available in:
GFE24JGKWW-White
GFE24JMKES-Slate ,
GFE24JGKBB-Black
GFE24JBLTS-Black Stainless
Date Created: 12/07/17
CHARLES D. BAKER Commonwealth Of Massachusetts J UND C.CERSECREEATARRYY
GOVERNOR UND OF
CONSUMER Division of Professional Licensure U D BUSINESS REGULATION
KARYN E. POLITO Office Of Public Safety and Inspections CHARLES BORSTEL
LIEUTENANT GOVERNOR Architectural Access Board COMMISSIONER,DIVISION OF
PROFESSIONAL LICENSURE
JAY ASH 1 Ashburton Place, Rm 1310 . Boston . Massachusetts . 02108 THOMAS HOPKINS
SECRETARY
ECONOMICDEVELO�ENT N V: 317-727-0660 • www.mass.gov/aab • Fax: 617-826-2511 EXECUTIVE DIRECTOR
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TO: Local,Building Inspector Docket Number V 18 363
Local Disability Commission
Independent Living Center
FROM: 'ARCHITECTURAL ACCESS BOARD
RE: Village of Barnstable
265 Communications Way
Barnstable
Date: 12/18/2018
Enclosed please find the following material regarding t above location:
Application for Variance Decision of the Board
Notice of.Hearing Correspondence
Letter of Meeting
The purpose of this memo is to advise you of action taken or to be taken by
this Board. If you have any information which may assist the Board in reaching
a decision in this case, you may call this office or you may submit comments in
writing.
r
CHARLES D. BAKER Commonwealth of Massachusetts J C. EAPMAN UND
GOVERNOR UNDERSECRRETARY OF
CONSUMER AFFAIRS AND
Division of Professional Licensure BUSINESS REGULATION
KARYN E. POLITO Office of Public Safety and Inspections CHARLES BORSTEL
LIEUTENANT GOVERNOR Architectural Access Board COMMISSIONER,DIVISION OF
PROFESSIONAL LICENSURE
JAY ASH 1 Ashburton Place, Rm 1310 • Boston • Massachusetts • 02108 THOMAS HOPKINS
SECRETARY OF HOUSING AND g
ECONOMIC DEVELOPMENT V: 617-727-0660 • www.mass. ov/aab • Fax: 617-826-2511 EXECUTIVE DIRECTOR
Docket Number V 18 363
NOTICE OF ACTION
RE: Village of Barnstable, 265 Communications Way Barnstable
1. A request for a variance was filed with the Board by Thomas E. Schultz,ll. (Applicant) on November 5, 2018 .
The applicant has requested variances from the following sections of the 06 Rules and Regulations of the Board:
Section: Description:
9.5.6 Pei loner sees relief from the requirement that outlets be located not less than 18 inches from the nearest
interior corner, and relief from the requirement that outlets be located not less than 15 inches above the
finished floor.
43.3.2 & Petitioner seeks relief from the requirement that sinks in Group 1 &Group 2 Kitchens have a depth of not more
45.4.5 than six(6) inches.
2. The submittal was reviewed by the Board as an incoming case on Monday, December 3, 2018
3. After reviewing all materials submitted to the Board, the Board voted as follows:
GRANT relief to 9.5.6&43.3.2 as proposed on the condition that the condominium and or lease documents for the
residential units,have language that state the option is available upon request, for persons with disabilities, that the
deeper sinks can be swapped out to a six and one half inch (6-1/2") deep sink at no cost to the condominium owner/or
lease holder.for the life of the building.
PLEASE NOTE:All documentation(written and visual) verifying that the conditions of the variance
have been met must be submitted to the AAB Office as soon as the required work is completed.
Any person aggrieved by the above decision may request an adjudicatory hearing before the Board within 30 days of
receipt of this decision by filing the attached request for an adjudicatory hearing. If after30 days, a request for an
adjudicatory hearing is not received, the above decision becomes a final decision and the appeal process is through
Superior Court.
Date: December 18, 2018
r-
.cc: Local Disability Commission
Chairperson.
Local Building Inspector ARCHITECTURAL ACCESS BOARD
Independent Living Center
CHARLES D.BAKER OHN C.CHAPMAN
GOVERNOR W N MERCAFFAIRS AND
aOF
BUSINESS REGULATION
KARYN E.POLITO LIEUTENANT GOVERNOR Commonwealth of Massachusetts w NY
CHARLES BORSTEL
JAY ASH Division of Professional. Licensure MISSIONER,DMSIONOF
FESSIONAL LICENSURE
SECRETARY DEVELOINGAND Office of Public Safety and Inspections
ECONOMIC DEVELOPMENT
Architectural Access Board THOMAS HOP
EXECUTIVE DIRECTOR
1 Ashburton Place, Rm 1310 . Boston • Massachusetts . 02108
V:617-727-0660• www.mass.gov/aab• Fax: 617-727-0665
APPLICATION FOR VARIANCE Docket:
INSTRUCTIONS: (Staff Only)
1) Answer all questions on this application to the best of your ability.
2) Attach whatever documents you feel are necessary to meet the standard of
impracticability laid out in 521 CMR 4.1. You must show that either:
a. Compliance is technologically infeasible, or
b. Compliance would result in an excessive and unreasonable cost without any
substantial benefit for persons with disabilities.
3) Please ensure that attached documents are no larger than 11" x 17". Common
attachments Include but do not require documents such as:
a. Floor plans,
b. Site plans which include the location of buildings and the meets and bounds
of the property,
c. Cross-sectional drawings,
d. Color photographs,
e. Test drawings,
f. Cost estimates,
g. Copies of the Property Card, and/or
h. Narratives, Including accommodation plans.
4) Sign the Application.
5) If the applicant is not the owner of the building or his or her agent, include a letter
frofv the o ner granting permission for you to apply for variance.
Bu copie of-the application and all attached documents onto a Compact Disc (CD
ror 01D onl , no flash drives will be accepted).
PrdWde full opies of the application and all attached documentation, on both Paper
sr.;andf, D/DV # the:
a. Lo , Building Department,
b. Lo q[Commission on Disability (if applicable in the town where the project.
o is I Cated), and
L '" c. The Independent Living Center (ILC) for your area.
(Your ILC can be found at: http://www.maslic.ora/findacenter.)
8) Provide to the Board:
a. A completed copy of the application and all attached documents,
b. A copy of the CD/DVD,
c. The competed, signed, and notarized Service Notice (included as Page 5 of
this application).
d. A check or money order in the amount of$50 dollars, made out to the
Commonwealth of Massachusetts.
_ i
In accordance with M.G.L., c.22, § 13A, I hereby apply for modification of or substitution for the
rules and regulations of the Architectural Access Board as they apply to the building/facility
described below on the grounds that literal compliance with the Board's regulations is
impracticable in my case.
1. State the name and address of the owner of the building/facility:
LORUSSO. LILA _L ET AL TRS
GREYSTAR I Gary J.-Kerr I Managing Dirwor, De�velooment
E-mail: gaty.kerr grgystar:com -
Telephone: o 857.254.13281 m 617:852 2667
2. State the name and address of the building/facility:
Village of Barnstable
296 Communications Way, Barnstable.MA - -
3. Describe the facility (i.e. number of floors, type of functions, use, etc.):
4-story residential building over,1-story garage _
4. Total square footage of the building: _338,695 g9f - Per floor:approx 69,000 sf average
a. total square footage of tenant space (if applicable)
5. Check the work performed or to be performed:
X New Construction Addition
Reconstruction/Remodeling/Alteration Change of Use
6. Briefly describe the extent and nature of the work performed or to be performed (use
additional sheets if necessary):
New construction of 225 age restricted units in a 4-story residential building over 1-story garage
7. Are you seeking temporary relief? Yes No X
a. If temporary relief if sought, what is the proposed deadline?
8. State each section of the Architectural Access Board's Regulations for which a variance is
being requested. (Please note the Board will NOT consider requests for relief from
Section 3, please list the specific items triggered by Section 3 where relief Is being
sought): '
SECTION NUMBER LOCATION OR DESCRIPTION
521 CMR 9.5.6 Outlets <18"from an interior corner over L-shaped counter sections
521 CMR 9.5.6 Outlets <15"AFF underneath windows
521 CMR 43.3.2 Unit kitchen sinks >6.5" deep
if requesting relief to 5 or more sections, use the Large Variance Tally Sheet available on the
"Forms and Applications"page of the Board's website (http.,#Www.mass.gov/aab)
Page 2 of 5 Rev, 10/18
9. Is the building historically significant?_yes X no. If no, go to number 10.
9a. If yes, check one of the following and indicate date of listing:
National Historic Landmark
Listed individually on the National Register of Historic Places
Located in registered historic district
Listed in the State Register of Historic Places
Eligible for listing
9b. If you checked any of the above and your variance request is based upon the
historical significance of the building, you must provide a letter of determination from the
Massachusetts Historical Commission, 220 Morrissey Boulevard, Boston, MA 02125.
10. For each variance requested, state in detail the reasons why compliance with the Board's
regulations is impracticable (use additional sheets if necessary), including but not limited
to: the necessary cost of the work required to achieve compliance with the regulations (i.e.
written cost estimates); and plans justifying the cost of compliance.
_Please refer to attachment.
11. Which section of the Board's Jurisdiction (see Section 3 of the Board's Regulations) has been
triggered?
3.2 X 3.3.1 a_ - 3.3.1 b 3.3.2 3.4 Other (List Section)
12. List all building permits that have been applied for within the past 36 months, include the
issue date and the listed value of the work performed:
Permit# Date of Issuance Value of Work
Buildinc Permit 13-17-2157—8/15/17 $ 25,370,351.15
(Use additional sheets if necessary.)
13. List the anticipated construction cost for any work not yet permitted:
Irrigation permit
14. Has a certificate of occupancy been issued for the facility? Yes No X
If yes, state the date it was issued:
15. To the best of your knowledge, has a complaint ever been filed on this building relative to
accessibility? Yes Now
a. If so, list the AAB docket number of the complaint
16. For existing buildings, state the actual assessed valuation of the BUILDING ONLY, as
recorded in the Assessor's Office of the municipality in which the building is located:
N/A
Is the assessment at 100%? - N/A
If not, what is the town's current assessment ratio? N/A
17. State the phase of design or construction of the facility as of the date of this
application: 75% complete
Page 3 of 5 Rev, 10/18
18. State the name and address of the architectural or engineering firm, including the name of
the individual architect or engineer responsible for preparing drawings of the facility:
The Architectural Team, inc.
E-mail: tschultz ar architecturalteam.com
Telephone: 617.889.4402 -
19. State the name and address of the building inspector responsible for overseeing this
project:
Edwin Bowers
E-mail: 367 Main Street, Hyannis , MA. 02601
Telephone:
Date: 11/2/2018
Signature o `owner or authorized agent (required)
PLEASE PRINT:
Thomas E Schultz II
Name
The Architectural Team, Inc.
Organization (it Applicable)
50 Commandants Way
Address
Address 2 (optional)
Chelsea _ MA 02150
City/Town State Zip Code
tschultz@architecturalteam.com
E-mail
617.889.4402
Telephone
Page 4 of 5 Rev, 10/18
SERVICE NOTICE
I, _ Thomas E Schultz ll _ , as architect
(name) (relationship to the applicant)
for the Petitioner Greystar submit a
(name of the applicant)
variance application filed with the Massachusetts Architectural Access Board on 11/2/2018
(date variance submitted)
HEREBY CERTIFY UNDER THE PAINS AND PENALTIES OF PERJURY THAT I SERVED OR
CAUSED TO BE SERVED, A COPY OF THIS VARIANCE APPLICATION ON THE FOLLOWING
PERSON(S) IN THE FOLLOWING MANNER:
NAME AND ADDRESS OF PERSON OR AGENCY METHOD OF DATE OF
SERVED SERVICE SERVICE
1 Barnstable Building Department
Building 200 Main Street Mail 11/2/2018
Department Hyannis, MA 02601
2 Barnstable Disability Commission
Local Barnstable Town Hall
Commission 367 Main Street Mail 11/2/2018
on Disability
(NApplicable) Hyannis, MA 02601
3 Cape Organization for the Rights of
Independent the Disabled
Living
106 Basset Lane Mail 11/2/2018
Center Hyannis, MA 02601
AND CERTIFY UNDER E PAINS AND PENALTIES OF PERJURY THAT THE ABOVE
STATEMENTS TO TH BEST OF MY KNO LEDGE ARE TRUE AND ACCURATE.
Signature: Appellant or Petit over
On the n of Day of No P r, 20 t �5
PERSONALLY APPEARED BEFORE ME THE ABOVE NAMED
(Type or Print the Name of the Appellant)
. MEGHAN WYNNE
Z
Notary,Public
Commonweahh of if
f My Commission Expires
August 23, 2024
NO! OU13 MY COMMISSION EXPIRES
Page 5 of 5 Rev, 10/18
I
The Architectural Team—Village of Barnstable
MAAB Variance Application
Response to Question 10
Introduction
The Village of Barnstable is a newly constructed multifamily housing development located in
Barnstable, MA. This is a 4-story building with a 1-story parking garage below. There are 225
units comprised of 1BR and 2BR types. There are three (3) elevators servicing all floors, as well
as a Leasing Office and various Common/Amenity spaces. The project has been designed to
fully comply with 521 CMR, however we have identified three (3) issues below for which we are
seeking a variance.
Variance Request #1: Outlets near interior over L-shaped counters
Unit Kitchens with L-shaped Counters
521 CMR 39.3.1 and 9.5.6 require electrical and communication receptacles on walls to be
located no less than 18"from the inside corner
Throughout the project, the current electrical design locates wall outlets such that they are
mounted no lower than 15"above the finish floor, are dispersed throughout the units per the
National electrical code requirements and are at least 18"from inside corners - thereby meeting
requirements found in both 521 CMR and the electrical code.
Section 210.52(a) (1) of the National Electrical Code requires electrical outlets on a 12'spacing,
such that no place is further than 6' measured horizontally from an outlet. The National
Electrical Code also has requirements for outlets at each counter wall in a kitchen. The Design
and Construction requirements of the FHA require at least one outlet to be located minimum
36"from an interior corner at L-shaped counter sections. In order to meet the overlapping
requirements of the National Electrical Code and the Design and Construction Requirements of
the FHADM, typically three outlets are provided over L-shaped counter sections. One or two of
these three outlets are often located <18"from the interior corner. In order to meet the
overlapping requirements of the National Electrical Code, the Design and Construction
Requirements of the FHA, and 521 CMR, KMA has been informed that at least four outlets must
be provided at L-shaped counter sections.
We are able to meet the requirement for outlets to be at least 18"from an interior corner in
[168] units without an additional outlet. However, in [57] an additional outlet and the relocation
of installed outlets would be required at the L-shaped counter sections. It will cost [$XXX
ESTIMATED COST TO RELOCATE/ ADD AN OUTLET AT L-SHAPED COUNTERS] to add and
relocate the outlets at L-shaped counter sections to be minimum 18"from the interior corner.
To minimize any inconvenience that this could cause a person with a disability, we are providing
at least one outlet minimum 36"from the interior corner at L-shaped counter sections, as
required by the Design and Construction requirements of the FHA.
The Variance Request attachment #EX-2 shows a typical unit kitchen plan layout with the
location of electrical outlets, in addition to the corresponding elevation.
Conclusion
The Architectural Team—Village of Barnstable
MAAB Variance Application
We believe that full compliance with CMR 521 39.3.1 and 9.5.6 in the units is impracticable. It
would require excessive cost without substantial benefit to people with disabilities to install
outlets within the required reach range at the L-shaped counter sections. We are therefore
requesting a variance to allow outlets at the window wall within 18"from the inside corner of
the L-shaped counter sections. Because the project is locating at least one outlet >36"from the
interior corner over the L-shaped counter section, there will be minimal loss of benefit to
persons with disabilities.
Variance Request #2: Outlets underneath windows
Group 1 and 2A Apartment Units
521 CMR 39.3.1 and 9.5.6 require electrical and communication receptacles on walls to be
mounted between 15"and 48"above the floor.
Throughout the project, the current electrical design locates wall outlets such that they are
mounted no lower than 15"above the finish floor, are dispersed throughout the units per the
National electrical code requirements and are at least 18"from inside corners - thereby meeting
requirements found in both 521 CMR and the electrical code.
Section 210.52(a) (1) of the National Electrical Code requires electrical outlets on a 12'spacing,
such that no place is further than 6'measured horizontally from an outlet. Past Building
Department interpretation has indicated that this will require a wall outlet along the exterior
wall, which has large glass windows. It is technologically infeasible to install a wall outlet in the
window wall that would meet the height requirements of 521 CMR 39.3.1.
The 12'spacing requirement mentioned above impacts 32 units with exterior window walls. As
a compliance alternative, we are proposing providing an outlet in the sill at the window wall in
32 units. To minimize any inconvenience that this could cause a person with a disability, we are
proposing to provide accessible outlets on the adjacent side walls that will serve the same area.
The Variance Request #EX-1 attachment shows typical unit plan layouts with the location of
electrical outlets, in addition to the corresponding elevation. This request is to be implemented
at the living room only. Additional accessible outlets have been provided that serve the same
area.
Conclusion
We believe that full compliance with CMR 521 39.3.1 and 9.5.6 in the units is impracticable as it
technologically unfeasible to install outlets within the required reach range in the exterior
window assembly. We are therefore requesting a variance to allow outlets at the window wall in
the sill to be located less than 15"AFF. Because the project is locating outlets on adjacent
walls, there will be minimal loss of benefit to persons with disabilities.
Variance Request #3: Unit kitchen sink depth
Group 1 &2A Kitchens
i
The Architectural Team—Village of Barnstable
MAAB Variance Application
The project includes a total of 225 units, of which 12 units are Group 2 and 213 are Group 1
units.
Marketing Advantage of a Deeper Sink
Owner and marketing experience demonstrate that the 10"deep sinks are more comfortable for
an average height, standing person, and are preferred by most potential tenants. The increased
depth provides for more comfortable cleaning and washing up, is capable of holding more
items, and better facilitates the filling of bottles, vases and other tall containers. Overall, when
presented with a choice, the vast majority of prospective tenants will prefer a deeper sink and
would want their sink replaced if a shallow sink is initially installed.
Modification of a 6.5"Deep Sink to a Deeper Sink
If 6.5"deep sinks are initially installed in the 225 units, it is very likely that most tenants would
want to change the sinks to a deeper sink. The shallow sinks will have to be removed and
thrown away. Alternatively, if deeper sinks are installed initially, a lesser number of sinks are
expected to be replaced, thus economic impact is reduced.
Estimated Cost of Sink Replacement
Replacement of a 6.5"sink by a 10"deep sink is estimated as [ESTIMATED COST]. Replacement
of a 10"deep sink by a 6.5"deep sink is estimated as [ESTIMATED COST]. See attached spec
sheets.
Adaptability of Kitchen Sink
521 CMR 43.3.2 and 45.4.5 state that the sink bowl shall not exceed 6 1/2 inches in depth. We
are proposing the following:
The deeper sinks will be initially installed in all Group 1 and Group 2Aunits. All leasing agents
will be formally instructed to alert prospective tenants of the availability of shallow sinks and the
procedure for requesting a shallow sink will be included in all leases. Upon receipt of request for
a change to the 6.5" deep sink, the owner will swap out the sink at no charge to the tenant. We
will purchase and store at the property 6.5"deep sinks so that the conversion can occur within
one week. The sink swap-out process will be included in the Standard Operations Manual for
the facility.
Conclusion
We believe that full compliance with 521 CMR 43.3.2 and 45.4.5 is impracticable as it will result
in excessive cost without substantial benefit to people with disabilities and are therefore
requesting a variance to allow initial installation of 10"deep sinks in Group 1 and Group 2A
dwelling units. Our proposed adaptability procedure is compatible with the adaptability principal
stated in 521 CMR 43.1. and will insure shallow (6.5'D sinks will be installed in kitchens when
requested by a tenant (at no additional cost to the tenant) but will increase overall usability of
the kitchen sinks for the majority of tenants. We respectfully request that the Board grant our
Request for Variance.
161 . 0
November 2, 2018
Commonwealth of Massachusetts
Division of Professional Licensure
Office of Public Safety and Inspections
Architectural Access Board
1 Ashburton Place, Rm 1310
Boston, MA 02108
Re: Village of Barnstable: Application of Variance
Dear ,
On behalf of Greystar GP II, LLC ("GGP"), I hereby certify under the pains
and penalties of perjury that The Architectural Team, Inc. served or caused to
be served, on our behalf, a copy of the attached variance application.
Furthermore, I certify under the pains and penalties of perjury that the attached
application statements to the best of my knowledge are true and accurate.
Sincerely,
Village of Barnstable Owner, LLC
By
Ga err
Managing Director, Development
R4
y
The Planning & Zoning Resource Company
1300 South Meridian Avenue, Suite 400, Oklahoma Citv, OK 73108
Telephone (405) 840-4344 • Fax(405) 840-2608
11 Toll Free (800) 344-2944
Ext:4458
Please fax to my direct fax number 405-494-8058
To: Robin Anderson
Fax: 508-790-6230
Email: robin.anderson@town.barnstable.ma.us
Date: 05/04/2017
Subject: Zoning Verification Letter and addtional documents
Ref. Number: 102317-1
RE: The Village at Barnstable, 125,145,160,175,180,191,200,225,265 Communication Way,
Barnstable, Massachusetts
Add'IInfo: Parcel314049
Attached is our request for property information on the above-mentioned property.
Please copy it onto your letterhead, provide the requested information, sign and
return to me via either my direct fax, shown above, or via email to
jessica.beene@pzr.com.
It is my understanding that there will be fees associated with this request. Please
be advised that the total fees are not to exceed $75.00 without my approval. If you
should expect the fees to exceed this amount, please notify me as soon as
possible. Furthermore, any additional costs associated with this request must be
approved, in writing, prior to their incurrence.
Thank you in advance for your time and consideration on the above matter. If there
are any questions you are unable to answer please let me know who I should
contact. If you have any questions or concerns, do not hesitate to contact me at the
toll free number 800-344-2944, extension 4458. You may also reach me by email
at:jessica.beene@pzr.com.
Sincerely,
Skyy (Jessica) Beene "�/ 3 7 d
CJC `�
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Feet regulatory interpretation.This map does not represent not true properly boundaries and do not represent 367 Main Street,Hyannis,MA 026ol
O 167 333 an on-the-ground survey.It may be generalized,may not accurate relationships to physical objects on the map 5o8-862-4624
reflect current conditions,and may contain such as building locations.
Approx.Scale:1 inch= 167 feet 0. cartographic errors or omissions. gis@town.barnstable.ma.us
Town of Barnstable
oFTME'�ti
Regulatory Services BARNSTABLE
, �,�,�, : Richard V. Scah,Director 109r 2014
Building Division '�
Paul Roma
Building Commissioner
200 Main Street, Hyannis, MA 02601
www.town.barnstable.maxs
January 9, 2017
Mr. Dan Lee, Greystar GP H, LLC
c/o Mr. Edward L. Pesce, P.E.
Pesce Engineering&Assoc. Inc.
451 Raymond"Road, Plymouth, MA 02360
RE: Site Plan Review#035-10 Revised The Village at Barnstable—Phase 1
125 —265 Communication Way, Hyannis POST CCC REVIEW
Map 314, Parcels 036, 037, 038, 044, 045, 046, 047, 048 and 049; Map 315, Parcel 042
Proposal: Project involves the construction of new Active Adult(age 55 and older)
apartments,totaling 225 units. This will include 2 multi-story residential apartment
buildings, connected by a 15,000 s.f. amenities building,providing a fitness center,
pool, spa/beauty salon,bar/lounge, etc. The site will be served by municipal water
and sewer services. On-site parking will be accomplished through a combination of
structured parking (beneath the apartment buildings), and surface parking spaces,
calculated in accordance with the Zoning Bylaw(SCCRCOD formulas).
Dear Mr. Pesce:
Please be advised that subsequent to the formal site plan review meeting held September 7, 2016
and CCC Review, revised plans for the above proposal were administratively approved subject to
the following:
• Approval is based upon, and must be substantially constructed in compliance with,plans
entitled"The Village at Barnstable, Proposed Active Adult Apartment Community—Phase
1 Site Plans", 10 Sheets, dated August 11, 2016 and last revised November 3,2016; also,
elevations and floor plans; 10 Sheets, dated November 3, 2016; and"Drainage Analysis
Report for The Village at Barnstable—Phase 1" all prepared for Greystar GP II, LLC by
Pesce Engineering&Associates, Inc., Plymouth MA. Also, Landscape Plan entitled
"Village at Barnstable,Illustrative Landscape Plan prepared by Blair Hines Design
Associates, dated November 3, 2016.
r
• Conditions of"Amended and Restated Development Agreement By and Between Greystar
GP II, LLC, a Delaware Limited Liability Company, The Lyndon Paul Lorusso Charitable
Foundation of 2002, and the Cape Cod Commission"CCC Project Number 09016 attached
to this letter.
• Submission and approval of Hyannis Ladder Truck Turn Template plan by Barnstable Fire
Department.
• On-site Affordable HousingRequirements
q s for Phase I as stated in Section 9 of the above-
referenced attached CCC Development Agreement.
• Prior to the use or occupancy of, or the issuance of a Certificate of Use/Occupancy, the
applicant shall first obtain a Final Certificate of Compliance from the Commission.
• Mary Dunn.Road may not be used as access during construction.
• Detailed engineered plans of the swimming pool and patio area that complies with all State
and local regulations for a commercial swimming pool, including but not limited to the
following: fencing, four feet walkway,no protruding stairs,proper sloping, turnover rate,
automatic chlorination, lifeguard, Hoyer lift etc. This engineered plan is a requirement of
the Health Department at the building permit stage.
• Rental registration and inspection of each unit will be required each year. Fee $90— Is'
unit, $25 for each additional unit.
• Floor plans for the beauty salon and other amenities proposed will need to be provided at
the building permit stage.
•. Consultation with DPW regarding the design of the exterior grease trap is required.
Contact: DPW 508-790-6400.
• Maintenance of the rain gardens as proposed on the ONM plan.
• The amenities building pretreatment questionnaire will need to be provided to ID what is
going into the Town's sewer system.
• Noise abatement from the Town of Barnstable Airport shall be the developer's/owner's
responsibility. R
• Applicant must obtain all other applicable permits, licenses and approvals required.
Upon completion of all work, a registered engineer or land surveyor shall submit a letter of
certification, made upon knowledge and belief in accordance with professional standards that
all work has been done in substantial compliance with the approved site plan(Zoning Section
240-105 (G). This document shall be submitted prior to the issuance of the final certificate of
occupancy.
A copy of the approved site plan will be retained on file.
Sincerely,
Ellen M. Swiniarski
Site Plan Review Coordinator
Attachment: Development Agreement—CCC Project# 09016
CC: Paul Roma,Building Commissioner
Barnstable FD
Health Department
DPW
Barnstable Municipal Airport
Attorney Ron Jansson- Lyndon Paul Lorusso Charitable Foundation of 2002
a
3225.MAIN.STREET* P.O.BOX 226
BARNSTABLE, MASSACHUSETTS 02636
(508)362-3828 • Fax:(508),362-3136.• Www,capecodcommission:org
AMENDED AND RESTATED DEVELOPMENT AGREEMENT BY AND BETWEEN
GREYSTAR.GP I1, LLC,A.DELAWARE.LIMITED,LIABILITY COMPANY, THE LYNDON
.PAUL LORUSSO CHARITABLE FOUNDATION:OF 2002, AND THE CAPE COD
COMMISSION'
(Commission Project Number 09016)
This Amended and Restated Development Agreement.(this "reeanenf'' is entered.into
this first(1st)day of December 201.6;by and between the Cape Cod Comm'Assion)(fiereinafter.the
t. mnxisston" , Greystar GP II, LLC,.a Delaware limited liability company(hereinafter,
together viwith..it)s.successors and assigns,"Grevstar");and The Lyndon Paul.I:oriisso Chad fable
Foundation of2002 (the "I+'ont►daton") {Greystar,and where.the context allows pursuant to
Section 11.2 below,.the Foundation, is referred to as the`.`Antlicant"herein,).
INTRODUCTION AND RECITALS
Whereas;the Commission.was established by chapter 716 of the Acts of 1980, as
amended;(hereinafter"Act"), for the purpose, among others, of reviewing certain developments
that, because.of their impacts are likelyto:present development issues significant to or affecting:
more than.one municipality and
Whereas,certain developments.that.are,li.kely to present development.issuessignificant to
or affecting more than one.municipality are deemed for.the.Commission review.Developments
of:Regional Impact(hereinafter"DRls"); and
Whereas,the Commission has adopted the Code of Cape:Cod.Commission Regulations'.
of:General Application(hereinafter"Code'.);including inter alia,Chapter A, Enabling
Regulations Governing.the Review of Developments of Regional Impact(hereinafter
"Itesalations.), as revised:November 201.4;.Chapter D: Developriient Agreement Regulations
Governing Provisions for Develo ment Agreements,re
P vised November 2014( _Chanter D.
And Chapter B:The Regional Policy Plan for Barnstable County(hereinafter"RPP.")as ievised
on August 12,2012;and
Whereas, Section 1.4 of:the Act provides that the:Commission may enter.intoa development agreement with an applicant.to permit development,subject to the provisions.of
Chapter D;where an applicant agrees to provide public benefits.and improvements as part of its
proposed development;and
8956569.6.
i
Whereas, Chapter D prov.ides for the review.and approval of Development Agreements.
for developments.that otherwise require DR[ review and approval,and;in particular, Section 4
thereof outlines who.may participate.in a Development Agreement; Section:5 fhereof outl fines the
procedure for adopting an Agreement by and between the Commission and a Qualified
Applicant, and Section 8 thereof outlines the procedure for adopting an Amendment of an
Agreement;:and
Whereas,in accordance with Chapter D of the Code, Section 5(a),on October 30,2009,
the Lyndon.Pau11orusso:Charitable Foundation of 2002.(the'1F'uulttdat1on")filed a Notice of
Intent with the Commission's Regulatory Committee requesting a determination that the Original
Proposal.(defined below)was suitable and qualified for the Development Agreement process,
and:.the Regulatory Committee determined that Ihe pro iect was suitable and qualified for a
Development Agreement process;and
Whereas,the originally proposed project(the"Orjgniriat Pro»osa.f")was described as the
construction and operation of.a:.cont inuing.caie retirement community located on an
approximately.26 acre site.in Independence.Park, Hyannis, MA,located at to 265.
Communication Wayjn Independence Park; Hyannis,.said land being more particularly
described in Appendix A attached hereto and shown on.a plan, a copy of which is attached hereto
as Appendix B', (the"Site");and
Whereas,.the Original Proposal consisted of at least three construction phases,and at
build-out would consist of six build ings for a total.of approximately 743,397 square feet and
included up to:340 independent living and assisted living units, a skilled nursing facility with up
to 60 beds, anunderground parking garage containing approximately 345 spaces and surface
parking of approximately 221 spaces,and on-site-amenities*jncluding butmot l imited to a:health
spa with a swimming:poof and fitness ce%nter,a bank, dinin fac�l�ties:with meal preparation,an
auditorium, and other.amenifies customarily found in continuing care:retirement communities;
and.
Whereas,following a review process conducted in accordance:
with Chapter D.the
Commission'issued RPP Findings;which were attached as Appendix F to,,and incorporated into,
e p thevelopment Agreement:dated October 28,2010 (the"Q�A Develo»men.t A regiment")
with respect to the Original Proposal described therein;,in which the Commission determined
that.the Original Proposal met the standards for:approval of a development agreement in Chapter
D, including the required determinations that the Original Proposal is consistent with the RPP
and proposes'to.provide.publc.benefits and:
-improvements; and
Whereas, on.January 3,2011 (the"E€% fiv+e Date"),the Clerk,of the Commission issued.
a Certificate relative to the Original Development Agreement.as rovided in.Section 5
P of Chapter
. .
D,a.copy of which Certificate)was recorded With-the Barnstable County Registry`o.f Deeds at
gook.25151; Page B6; and
Whereas;Greystar is the proposed purchaser of the Site by virtue of a certain Purchase
and Sale Agreement by and between the.Eoundat ion.and:Greystar dated as of.August 13;201 S,
m
as suppfeented by that certain Supplemental Agreement dated as of October 8;2015,as further.
supplemented by-that certain Supplemental Agreement.:No.2 dated as of November:ll,2015;as
further supplemented by that certain Supplemental Agreement No.3 dated as of November 12,,
2
8B5656,6
20.1:5, as further supplemented by that certain Supplemental Agreement.No. 4 dated as of
December'10;2015, as further supplemented by that certain Supplemental Agreement No.5
dated as of January 7,2016, as:further supplemented by that.certain.Supplemental.Agreement
No. 6:dated as of February 4;2016, as further supplemented.by that certainSupplemental
Agreement No,.7 dated as of.March 11, 2016, as further supplemented by.that certain
Supplemental:Agreement No. 8 date as.of March 1.6,2016, and as further supplemented by that
certain Supplemental Agreement No.9 dated as of April.29,.2016.(as so amended and
supplemented,and as the same may be further amended and supplemented,the"Purchase.
At reemehf),.a redacted copy of which is.attached hereto as Appeiidiz C,and is therefore a
Qualified Applicant; and as such may.participate in an Agreement per Sections 1(c), 4(a)and
4(b)of:Chapte.r D; and
Whereas,by a.letter dated November 7, 2016,:Greystar, by its.attorneys, requested.that
the Executive Director of the Commission.(the "Eccute D ;rectur").amend the Original
Development Agreement to reflect and approve the project described herein(as further described.
below,the`Yiltevised Project"),which is lesser.'in scope than the Original Proposal, as a Minor
Modification. as defined.in Section 8(b)(1)of Chapter.D.of.the Regulations; and
Whereas„the Revised Project consists of at least two construction phases as funding
allows and; at build-out,_would consist of four(4) buildings presently anticipated o be
constructed in two phases described.below, for a total of approximately 500,000 square feet,and
includes up to 340 residential units, which shall.be(i)attached dwelling units(apartments)
intended and operated for occupancy by persons Years.
age or'older in which at least eighty
percent(80%o).of the occupied units"are occupied by at least one person who.is 55 years of age or
older in accordance with applicable requirements of federal and Massa6h etts law("Active
Adult".),and/or 00 residential dwelling units in which supportive services.are offered.for
individuals who need assistance:in activities of daily living("Assisted Livyng"), an.underground
parking garage containing approximately:143 spaces and surface parking containing
approximately342 spaces,and on-site amenities, including without limitation a fitness'center
with.yoga studio.and swimming pool,a club room,theater room,.demonstration kitchen,:private
.dining facilities,and other:ameniti:escustomarily found in Active Adult and/or Assi ted Living
communities; and
Whereas,the Revised Project no loriger_includes a skilled nursing facilityand.the Revised
Project's affordable housing component will consist of up to thirty-four(34),affordable housing
units located at the Site,as compared to the Original Proposal that was planned to.include forty=:
two (42)affordable housing units located off-site at.the Falmouth:Road Site,which is no longer
part 'f the Revised.Project and
Whereas,the Revised Project will result in lesser environinental impacts than were
anticipated to result from.the Original Proposal,including without limitation reductions with
respect to the.following.projecied impacts: (i) otal number of housing units/beds (340 for the
Revised Project versus.340 units plus up to a 60 bed skilled nursing:facility:.for the Original
Proposal; (H)vehicular irafic generation.(approximately 1,034 average.dailytrips for.the
Revised P.rojectversus 1,328 average daiiytrips forthe Ongmal Proposal); (iii) parking
spaces
(approximately 490 spaces'for the.Revised Project, versus 56, .spaces fort he Original Proposal);
(iy)building.footprint(approximate.ly 3.10 acres for the Revised Project versus 4.41 acres for the.
3
8$56569,6
Original.Proposal); (v)gross.floor area(approximately 500,006 sf for the:Revised Project versus
Approximately 743,000 sf for the Original Proposal); (vi)impervious surface area (approximately
7.60 acres for the Revised Project:versus 8.63 acres for the Original:Proposal); (v.ii)water flows
(approximately 56,100 gallons.per day for the Revised Project versus 60,000 gallons per day:for
the Original Proposal),(viii) wastewater flows(a proximately gallons per day for the
Revised Project versus 60,OOo gallons per day for the Original Proposal); and (ix).a reduction in
the number.af.proposed vehicle curb.cuts;and:
Whereas;the Commission and. he Applicant are Participating Parties(hereinafter,each.a
to this Agreement pursuant.to Sections 1 and 4 of:Chapter D of the Code and that the
Foundation has agreed to the Revised Project as set.forth herein; and.
Whereas, per Chapter Di Section 4,.the Town of.Barnstable (the "Town') is not a
Participating Party to this Agreement; but will review the Revised Project(defined below)
according to the requirements of the Town's existing zoning and other municipal ordinances; and
Whereas,:the Revised Project is located in the Town's Industrial Zoning District and
within a Senior Continuing Care Retirement Community Overlay District andis All as-of=
right'pursuant to Barnstable Zoning Ordinance Section 240-21A(9)(j), subjectto:obtaimng
approval from.the Town's.Site Plan Review Committee; Sewerand Water Connection Permits
from the`Town's Department of Public Works, and.applicable construction=related permits; and:
Whereas;the:Executive Director delegated$uthorityao the Commiss.ion'.s.Committee on ,
Planning and Regulation to:review the Revised Project;And the Committee has.rev.iewed:the
Revised Project and has determined such Revised Project constitutes a Minor.lvlodification as
defined in Section 8( X ).of Chapter D.of.the, Regulations;
Whereas,the Appli ' t.is a Qualified Applicant which has voluntarily.proposed a
coordinated,planned development:and/or redevelopment of the Site,.which.proposal is
substantially similar to the.Original Proposal for which the Commission previously.granted
a roval:under a develo ment a eement�and
Pp P �'
Whereas,the Site is situated within an Economic Center as identified on Bar'
nstable'.s
Land.Use Vision Map; and.
NOW'THEREFORE .i'n consideration of the Applicant s.agreeing to erform full its
P. Y
obli atons a under the. O the A lication and attachments as modified and acce ted b e
PP p y th
Comm'ssi i . on .and . under.this Agreement and the(b) g Commission s execution of this Agreement
as:authorized:by Section:l4..of the Act, and for other good and:valuable consideration,the receipt:
and`sufficiencyofwhich are hereby.acknowledged bythe signatories;the Parties.hereto agree as
follows:
SECTION I. AMENDMENT AND RESTAtiMENT OFAGREEMENT
l.l. Amendment.and Restatement;
This Agreerrient amends arid`rest4tes'in its entirety.the,Original Development Agreement,.
The.Applicant shall build.Phase 1 (inc)uding all components thereofl in accordance with the
a
88565%6.
termsof.this Agreement,and the plans ace epted bythe Commission pursuant to this Agreement,
a list of which are attached hereto as.Appendix D'(. a"Revised Plans"). The Revised Plans.
:replace in full any plans and materiais showing and describing the Original Proposal. Any
modification.of the Revised Project as modified and accepted by the Commission shall only be
made in compliance with Section.8 of Chapter D of the.Code..
1.2. Term.
This.Agreement is effective.as of the Effective Date and the term or duration:of this
Agreement shall be twelve(12)years:from the Effective Date;provided; however,the Parties
acknowledge and agree that by operation of the Permit Extension Act(Section 173 of Chapter
240 of the Acts of 2010;as amended by Sections 74 and 75 of Chapter 238 of.the Acts of 2012),
the:term.of this Agreement has.automaticallybeen extended for_an additional four(4)years
beyond the initial: 12=year term and,therefore, unless extended pursuant to the relevant extension
.provisions in Chapter D of the Commission's Regulations; the term of this Agreement shall
expire atm:idnight at the end.of January.2;2027. During the term of this Agreement: (i)the
Commission's Regulations,including the RPP;:as in effect on the Effective Date of this
Agreement, shall apply to the Revised:Project;.notwithstanding any subsequent,or intervening
changes to said Regulations;(ii)the Applicant,may obtain municipal development permits for
the Revised..Projectpursuant.to this Agreement; and (iii)the Revised Project shall not he subject
to review"A Development ofRegional Impact. Pursuant to Section 7 of Chapter D;.this
Agreement may be extended by consent of the.Parties,subject to a public hearing:in accordance
With.Sect ons.5 and 6.:of Chapter D.
1..3. Eriforce.m6ni..
The terms of this Agreement shall be specifically.enforceable in.a court of equity,after
the giving of notice and an opportunity to cure,as described below. 1n he event the Commission
believes the Applicant has violated or is about to violate.'ny of its obligations hereunder,the
Commission shall.give the Applicant written notice of such actual.or prospective violation and a
60-day.penod to commence corrective action provided the Applicant will move forward to
correct any such violation and'continue until such cure is completed. If the Applicant believes
no violation has occurred or is about to occur; it may request a hearing before the Commission.or
a subcommittee thereof' The 60-day.period to.commence such action:should be suspended until
the.Commission or subcommittee makes its determination and will resume should the
Commission or subcommittee determine a cure is needed. The subcommittee or Commission
shalt hold its he within 45 days of such request. If no amicable resolution is reached within
30.days after the hearing, either Patty may seek:a judicial resolution.
1.4. Successors and Assigns.'
This Agreement is appurtenant to and shall run with.the Site,with any improvements
thereon,and shall bind,and inure to the benefit.of,the Applicant, its uccessors and assigns..The.
Applicant shall,not assign oraransfer.this Agreement,or its rights.under this.Agreement, in whole
or.in part, to any person except in accordance.with;Section 11.2, below.
88565626 S.
q i „
Public.Benefits and Improvements,,
As the Applicant's consideration for this Agreement,the Revised Project shall provide
public benefits Iand.improvements as deti iled`herein:below.. The Parties hereto acknowledge that
the Foundation; asa.Qualified.:Applicant, already provided additional public benef is and
improvements in connection with the Revised Project, including without limitation the
following: (i)a$261,000 monetary.contribution to the Lewis Bay Research Foundation to
support its research purposes, including investment in equipment.to conduct algae removal; (ii)a
$500,000 pledge to the Barnstable Fire District Water Department for development of a new
well;.(iii)a$500,000.donation to the Town of Barnstable's Water.Supply Division for
construction of anew water tank-and (iv) construction of a right hand turn lane.at the
intersection of Independence Drive and Route 1,32: Becauseahe proposed impacts of the
Revised Project are less than or equal to those that were anticipated.to result from the Original
Proposal; no additional mitigation is required..
9
1.6. Consistency:with Regional Policy Plan; .
The. Revised Project is subject to.:and consistent with the RPP,subject to the terms.and
conditions set.forth herein below. The.Commission.issued RPP Findings'for the:'Original
Proposal attached to and incorporated into the Original Development Agreement as.Appendix F..
As used herein,'MPS"refers to the minimum.performance standards contained in the RPP;
"81J refers to the best development practices contained in the RPP.
The Applicant and the Commission agree that.development constructed consistent with
the'terins.and conditions of this Agreement and in compliance.therewith_shall not be.subjectto
review as a Development:of Regional Impact under sections 12 and.I3 of the Cape Cod
Commission Art forthe.term and duration ofthisAgreeinent.
1.T Amendment::
This Agreement may be further amended pursuant to Section 8 of Chapter'D.
.SECTION 2. GENERAL TERMS-AND CONDITIONS
2:1.. Revised.Project. '
The Revised .Project consists: of development at the Site (hereinafter the "Ttev sed.
ft_6 iecf.'). The Site shall consist of up. to 340 Active Adult and/or Assisted Living units,
underground garaged and surface:parking,.and other on site amenities. ..
2.2 Phases:
The Revised Project may be constructed.m multiple.P* hases or sub-phases. The Revised
Project.is planned to include.two phases (each, a ``Phase") and the Commission may., at its
discretion, .approve sub phases within these two Phases., The first phase. (VhAse 1"} shall
consist.of the development of up to 225..Active Adult units (150 one=bedroom units and 75 two
..bedroom units), The second phase c Phase 2") may hnclude up to an additional l 15. Active
Adult and/or Assisted Living units. Each Phase or sub-phase thereof must`consist.of discrete and
8856569,6.'
complete buildings with. necessary supporting infrastructure and site improvements, and not
portions or parts thereof. The Applicant's rights and obligations with respect to the development
of Phase 1 shall in noway require or depend:upon.the development of any subsequent Phase; or
portion thereof; including the.timing.with respect thereto. No less.than ten percent (10%) of the
housing :units constructed as .part of the Revised Project shall be designated and restricted as
affordable units (the `.`Affo diiblle pi&), as defined pursuant to Chapter 9 of the Municipal
Code of the Town of Barnstable(the"Tov�n
2.1 Phase I Approved Plans.
Phase 1 is shown on the Revised Plans: Phase l shall be constructed, operated and
maintained an:accordance with the Revised Plans and other documents listed on Ainpendiic 1.(the.
kevised_ 1VIateriials" and, collectively with the Revised Plans, the "Revised Plans`and.
Auterki , When.redeveloped and renovated;Phase l shall not exceed 375,000 square:feet of
new construction. A minimum of ten percent (10%) of the housing units constructed as part of
Phase l shall be Affordable Units,as defined under.the Barnstable Municipal Code.
2.4,, Phase 2 Concept Plans.
Included with the Revised Plans listed on Appendix D, attached hereto,are site plans
Showing Phase 2 entitled, "Phase 1. and Phase 2 Full .Layout Plans" prepared. by Pesce
Engineering and Associates dated: August I I., 2016 (last revised November 8, 2016) (the
"Coact.Plans"); which are..conceptual only but.shall al low not more than 115.units of active
adult and/or assisted living: Prior to and as a:-condition to commencing, or.olitaining.the first
building permit in.connection with; Phase 2,.the Applicant. shall submit: (i):detailed plans and
information to the Commission, which shall be reviewed for consistency.with the Concept Plans;'
and (ii) a list of the performance standards.to which.Phase 2.will.conform: To the ektent such
performance standards vary from those.: set forth in .this Agreement, the Commission may
Approve such:variations,,in its.discretion, if it determines that the Concept Plans and performance
standards are substantially.con. sistent .with the. terms and conditions. of this .Agreement. The
Applicant shall not be required to construct any Phase beyond Phase 1, if it chooses to exercise
the development rights hereunder for construction of.Phase l. .If the Applicant does.not:intend:to
develop Phase 2,.it.shall not use; clear or develop any:of the Site outside.of the.Phase I portion
of the S.ite:
2.5. Preliminary'Certificate/s of Compliance.
Prior.to ahe commencement.of,or issuance of a Building Permit for,.any Revised Project
Phase;or sub-phase thereof as recognized by the Commission;the Applicant.hall ,first obtain a
Prelimtn.i*ty Certificate of.Compliance from the Commission'which confrms that conditions
of this Agreement that are required to have been.satisfied prior t o issuance of Preliminary
Certifcate of Compliance have:been satisfied,and that•the Revised Project is oth.erwise
consistent with this Agreement.
2.6.. Final Certificate/s of Compliance.
Prior to the use or occupancy of, or the.issuance of a Certificate of Use/occupancy for,
any Revised Project Phase; or sub=phase thereof as recognized by.the.Commission;the Applicant
895069.6
shall first obtain a Final Certificate_of Compliance.from the Commission which confirms that.all
conditions of this Agreement that are required.to have been, satisfied prior to issuance of A Final
Certificate of Compliance have been. satisfied, and that the Revised Project is otherwise
consistent with this Agreement,
23. Commission Review:
Commission staff will _underta.ke a review of the Pro'ect's. compliance with, .this
Agreement, including the.applicable .conditions hereof, upon the Applicant's request -to.the
Commission for issuance of a Preliminary or:Final Certificate:of Compliance. At the time:the. .
Applicant requests such a certificate, it, shall provide :Commission staff a..list of key:project
contact(§), along With their telephone numbers,. mailing addresses; and email addresses, in the
event questions arise dunheCrissiori mn's compliance review. As part.of its compliance
review, Commission staff may make; and the Applicant hereby authorizes, a site inspection, as
needed, at reasonable times and :upon reasonable notice o the Applicant: Upon review, the
Commission.shall either,prepare and issue the requested Certificate, or:inform"the Applicant in
writing of any compliance deficiencies and the:remedial action, required for the is of the
requested Certificate. If all required exterior lighting,;site work or,landscape improvements are
not complete at the time a Final Certificate.of Compliance is sought from the.Commission, the
Commission may, in its,discretion, issue such Final Certificate of Compliance, subject to an
escrow agreement_that ensures such work wil l be timely completed, such.escrow.agreement to:be
reviewed and found satisfactory in form and content by Commission staff. The amount of the
escrow agreement shall be equal to 150°Z.of costs to complete the required; 'incomplete work.
2.8. Notice and.Copy of Agreement.
Prior to:and as a condition to issuance of the first Preliminary.Certificate of Compliance
for either.Phase of the Revised Project,'the Applicant shall evidence and certify to the
Commission that a copy of this Agreement,and any-modiftcati.ons or:rescissions,have been
received by all site contractors;arc hitects,.engineers;:landscape designeIrs.. .aAd other firms Or
persons involved in the construction of the Revised Project.. Such certification:shall include the
names-of contractors and subcontractors; and that such contractors and subcontractors hAve been
notified of perm its required for the Revised.Project that relate to the fire department and water
supply at the Site. A.copy`of this Agreement and the Approved Plans shall be maintained.on the
8ite1hrou.gh c on,struction.of.the Revised Project:
29: Final Construction Drawings and Local Discretionary Permits.
Prior to and-.as a condition to issuance of the first Preliminary. Certificate of:Compliance
for either phase of the Revised. Project, the.Applicant shall, submit for:Commission staff review
and approval,;which approval shall not.be.unreasonably withheld or d.e.layea, final permitting-
level construction drawings, plans.and.specifications (including but not .limited to site plans,
floor plans, dimensioned architectural,drawings, and. roof plans) as dwell as copies of.any local.
discretionary permits (the "Construction Drawinta>and Per'mcts") for the Revised Project to
cvnfirrn.their consistency with this Agreement:and the:Revised Plans hereunder, To the extent
the:Construction Drawings and Permits depict or describe material changes from.the..Revised.
s
8856569.:6.
Plans,Commission staff may determine'such.material .changes require further Modification to
this Agreement.
SECTION 3. ECONONIIC DEVELOPMENT
3A. Economic Center.
The Site is situated within an Economic Center as identified on.Barnstable's Land Use
Vision Map.:
3:.2. Economic Development Benefits from Revised Project.
Prior to and as a condition'to issuance of a Finat Certificate of Compliance,for any Phase:
or sub-phase-Phase; the.Applicant shall submit to Commission staff report for that Phase or
sub-.phase consistent.with the Commissio_n's Technical Bulletin 04-002:and RPP BDP ED2.2.,
BDP ED3,1, and BPD ED3.7; including the following information:
Actual..investment required to realize the:Phase, including.total investment cost,
materials, labor and related development services
Total investment in teal pro and structures)
Total investment in personal.property(machinery and'equipment)
Employment information.for construction phase including total work hours
required to complete the Phase,total labor costs and;average wage
Workforce data on total.employment at the site after.construction has been
completed including full time;.part time,temporary and seasonal:workers
• Benefits data onaypes.of benefits.provided
Data on benefits eligibility criteria
+- Fiscal impact data to include tax liability
basis, actual.taxes paid to the Town of
Barnstable, County and State levels
Data on any.tax abatements;tax increment_f nancing,.tax credits or tax
breaks%incentives received at.fhe Town;County or:State levels,if any
Data on local property taxes and.fees.
w. Data on the:Phase's services usage,.including.water, sewer,solid.waste,schools,
publicsafety, human services,parks and:recreation and public transit
The Final:Certificate of Compliance shall not be withheld should any projections notb ere alized.
SECTION 4. WATER RESOURCES
Al 1: Water Conservation Measures:
Irrigation. water for the .Revised Project shall be'.supplied,with a private on-site well.
Each.Phase.of the Revised Project shall include in.its:design,.construction and operation water.-
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8856569:6
conserving measures including but not limited to low or dual-flush toilets, water conserving
faucets and showerheads. Prior to and as a condition`to:issuance of a Preliminary Certificate of
Comp Hance.for any Phase or sub-phase;.the.Applicant shall:provide to Commission staff for.that:
Phase or sub-phase, .a checklist of all.water conservation measures proposed to be installed.to
ensure consistency with the water conservation measures referenced in MPS WR1.5 and, BPD
WR1.7.
4.2: Water Resource Protection Measures for Landscape Maintenance,.
The Revised Project's landscaping shall use native,non-invasive and,drought=and pest=
resistant plantings; drip:irrigatioh,and shall.minim.ize.use of pesticides and chemical fertilizers in
favor of organic products..Any,application of such:pesticides or chemical fertilizers shall
comply with_the.Town's Fertilizer Nitrogen and Phosphorous Control Ord.inance:(Chapter 78 of
the Town Code). The Revised.Project shallbe.undertaken;.operated and maintained in
accordance.wth the approved lands' aping.plan and "Indsrane;IVlalnfonance Protocol"
ncluded`with the Revised Materials listed on p*pendj E°attached.hereto.
Prior to.and as a condition to issuance of a Preliminary Certificate,of.Compliance for any
Phase or sub=phase,the Applicant shall provide:for Commission staff review a copy of a.
contract/agreementfor implementation and operation consistent with this Section 4:2,which.
contract/agreement:include all material protocols and, requirements set forth.in:the Landscape.
Maintenance Protocol.
4.3.. Wellhead Protection;
The Site is loc6t6d..Within.a.Wellhead Protection Area. Site=wide:nitrogen loading shall
be limited:to 5ppm. The.Revised Project shall connect to municipal sewer.. Each housing unit at
the Revised:Project shall be limited to no`more than.a Household Quantity of Hazardous
Materials and/or Hazardous Waste Iconsistentwith the provii.sions.of MPS:WR2;2.and MPS .
WM1..L The]'mitation.set forth in the preceding sentence shall be.memorialized:in each.lease,
in the ease of rental units,and recorded condominium documents; in the case of any housing
units control ed by a condominium regime;at the Revised Project: Prior to and as a condition to
the issuance of the. .first Preliminary Certificate of Compliance for Phase 1, the Applicant shall
provide to the Commission for review and approval,which.approval shall:not be unreasonably
withheld, protocols for the`use, handling;and s�orage.of another insite Hazardous Materials.
used in connection with the operation and.maintenan*r of the Revised Project;including without
limitation those used'in.connection with any common areas or amenities.:
44. Water Resource,Protection during Construction.
Prior to and as:a condition:to issuance;.of a Preliminary Certificate of Compliance:for any
Phase or.sub-phase,the Applicant shall`provide for Commission staffreview and:approval,
which.approval shall not be unreasonably withheld,a written Pollution Prevention and
Emergency Response Alan(Plan).for that Phase.or sub=phase, consistent with MP.S:WR 1.4,.
which shall.thereafter`be implemented to address Hazardous.Materials siorage and handl'►.ng,and
spill response/contingency:strategies:from construction,activities.'this Plan shall specifically
fo
8856569.E
IL
r.
address the method for isolating potential spills from stormwater infiltration basin orsub-surface
discharge.
4.5. Stormwater Management.
The final proposed:stormwater design..for each Phase shall be designed; constructed and
maintained to meet all RPP MPS addressing stormiwater quality under water resources Goal 7,
the Town of Barnstable Stormwater requirements under the.Barnstable Zoning Ordinance,and
the Massachusetts Stormwater Standards: All.storm
water generated by each Phase shall be
inf.ltrated onsite, and the design of the system shall be_adeyuately sized to capture and infiltrate
at least a 25-year/24-hour storm for post-development.conditions. In addition;all stormwater
generated by each Phase shall be treated with`oil/grit`separators;to achieve a minimum:of 80%°
removal.of Total Suspended Solids(TSS). At least 44%of TSS shall be removed prior to
discharge.into,infiltration systems,consistent with.the.Massachusetts.Stormwater Standards.
The stormwater:system.of each Phase shall incorporate catch basis,subsurface detention
structures, rain gardens;vegetated swales,.surfaoe retention basins, pervious.(grassed)pavers,
overflow devices within the bioretention areas to capture larger storm volumes,and for frozen
flow;conditions, and ashut-o.ff valve or other flow-arresting mechanism for catch basins that
drain loading areas and areas where trash is stored. The systems shall also collect and infiltrate.
roof.runoffseparately into their respective subsurface i nfiltration systems. Consistent with MPS
WR7.3,and as set forth in the Stormwater Certification.included with the Revised Materials
listed on AppepdiY £ the Stormwater management system has been designed.to treat the.first
inch from the development parking and roadways using boo. ltration practices; including
without limitation.the.use of bioretention swal:6,::raingardens;and..infiltration basins designed as
bioretention basins,with a low ezfiltration rate of:only 0.52 in.lhr,.for..loamy soils and 2:24
inAr, for loamy-sandy soils.
4 6. Commission Review of Stormwater Management System.
Prior to and as a condition:to issuance of a Preliminary Certificate of.Compliance and
prior to issuance.of a Building Permit for each Phase.or sub-phase,the Applicant shall provide
for Commission staff review and approval which approval shall not be unreasonably withheld
final.stormwater design plans for that Phase or sub-phase consistent with Section 4..5.above.
4.7.. Stormwater`PollutiorrPrevention Plan:
Prior to'and as a condition to issuance:of a:Preliminary Certificate of Compliance for any.
Phase or sub-phase;the Applicant.shall.submit for Commission staff review and approval which
Approval shall.not be unreasonably withheld a construction sequencing plan including erosioni
and sedimentation eontrals,_a Stormwater Po(luti'on Prevention'Plan.and a copy of a Notice:of.
Intent/Appltcation for a NPDES stormwater perm it for.that Phase or sub-Phase consistent with
NIPS WR7.3 and MPS 7.4, Thereafter,the Revised Project shall be undertaken;operated and
maintained consistent with the.same.
4.8. Limitation of Impervious Surfaces:
Consistent with MPS WR7.6,Phase 1 including any associated sub-phases:shall be
constructed and maintained to minimize the use of impervious surfaces by providing
8856569,E
underground parking(as:designed,..for up to 143 parkng:spaces). Oravel walking paths and new
recreational.and landscaped courtyard areas along the south.side of the buildings have been
included in the:revised.design to.further decrease impervious surfaces.
4.9. Operation.and.Maintenance Plan;..
The stormwater..management system forThasel shall.be constructed, operated and
maintained in.accordance the Operations.and Maintenance Plan included with the Revised
Materials listed on Appendix E attached:hereto::
4.10. ` Certification of Stormwater Management System::
One calendaryear from complet onof the stormwater'system for any Phase or sub-phase,
the Applicant shall submit for Commission staff.review and!approval.which approval.shall not.be
unreasonably withheld a written certification bya Professional Engineer indicating that the
Engineer inspected the relevant stormwater.system, and certi :ing to the Commission that the
'
Aormwater system was installed and is functioning as designed and approved.
4.:11. Additional Water Resources Contributions.-
The Foundation has previously made the following monetary donations and mitigation
payments related 'to water supply infrastructure, and no further mitigation related to water.
supply.infrastructure is required hereunder:
(i) a$261,000 monetary contribution to.fhe Le.wis:Bay Research Foundation to
support.its research.purposes, including investment in equipment.to conduct
algae removal;
(ii) 4.$500;000.donation to the.Bamstable FireDistrict Water Department for
development of anew well;and
(H i) a$50000 donation to the Town of BarnstabWs. Water Supply Division for
construction of a.new water tank.
SECTION S.WILDLIFE AND PLANT HABITAT AND OPEN SPACE AND
RECREATION
511: Preservation of Open Space.
In connection with the Project,the.following three parcels of land{the"open Space
Parcels"),as:depicte*d on the Project Open Space Map attached hereto as.Appendix F(the
,Pio ect[;t�ieri rsatie Mari"), will be reserved for open space purposes in accordance with fhi
Section 5.;:
O a portion of the Site comprising approximately 9,51 acres (the".On-Site Op.en<
Space Parcel"); :..
12
8856569.6.
(ii) a portion of the parcel located at.56 Communication.Way(Assessor's Map
31.5,Lot 40).comprising approximately2.63 acres (the"Coni[naii�cat oa
WRY OPeii Space Parcel„) and
a portion of the parcel located at 271.South Flint Rock Road(Assessor's Map
3143 Lot 1)comprising approximately 2:00 acres(the"FlintRock:Pond
Urea space Parcel").
5.2. On-Site Open Space Parcel.
Prior to and as.conditions to issuance of a Preliminary.Certificate of Compliance for
Phase. I or any sub-phase thereof,the following shall`occur with respect to the On=Site Open
Space:Parcel:
(i) The Applicant shall submit for Commission staff review and approval,:which
approval shall not.be unreasonably withheld, a restoration plan (a
"Restoration Plan".).to restore disturbed portions of:the.On-Site Open Space
ParceL The Restoration Plan shall be exclusive of, and in addition to;the
Revised Projects landscaping plans, and substantially conform to the
requirements set forth:below in Section:5.5. In prepaxing.the Restoration
Plan,the Applicant shall confer with, and obtain approval from; Eversource:
Energy(or such other utility company owning the electric utility facilities and
equipment located on the On-Site Open Space Parcel),as necessary to
implement_the On site Open Space.Parcel.Restoration Plan; The Co is
shall accommodate any.changes to the.Restoration Plan that may be
reasonably requested by the.utility company.. Except with.respect to any
ongoing.maintenance.obligations, the Applicant shall perform the initial work
contemplated by the Restoration Plan.prior to issuance of the first Final
Certif Cate,of Compliance.
0i) The Applicant shall submit for Commission staff review and approval,which
approval shall not be unreasonably withheld;a draft perpetual.conservation
restriction(the"Ou 8Ite Conservafton.Restdef ott")consistent with.
Massachusetts.General:.Laws Chapter.,184, §§31-33,.and.accompanying plans...
Said drafft conservation;restriction:shall be accompanied by correspondence.
identifying a grantee willing and able to hold the restriction oil the On-site
Open Space Parcel.
(iii.) Subject to:Section:5.6 below,the ApplicanC shall submit the foregoing draft
Ori=Site Conservation Restriction, as approved .by the*Co
rrimission;forthe
review.and approval of all appropriate:state and local authorities,which may
include;without limitation,the Town of&umr table, its Conservation.
Commission,and the Executive Office of Energy and Environmental Affairs.:
8856569,E 13
I
5:3. Communication Way Open Space Parcel.
Prior wand as conditions to issuance of a Preliminary Certificate of Compliance for:
Phase 1 or any sub-phase.thereof,the:following.shall occur With.respect to the Communication
Way'Open Space Parcel:
(i).. The Applicant shall submit.for Commission staff.review and.approval, which
approval shall not be unreasonably withheld, a Restoration Plan to restore
disturbed portions of the Comm.unication.Way Open Space Parcel, The
Restoration Plan shall be exclusive of, and in addition to,the Revised
Prole 1 9 landscaping plans;and substantially conform to the requirementsset
forth below in Section.5.5. Except With.respect to any ongoing maintenance..
obligati.om,.the Applicant.shall perform the`initial work contemplated.by the
Restoration.Plan..prior to issuance of the:first.Final.Certificate of Compliance.
(ii) The Applicant shall, at its option, submit for Commission.staff review and
approval,which.appcoval shall notbe unreasonably withheld,.a draft of either:
(A)a perpetual conservation restriction (the"Communication Way.
C�nse, fjon Restriction!)consistent.with Massachusetts General Laws
Chapter 184; §§31-33,accompanying plans,:and correspondence identifying a
grantee willing and able to hold:such restriction; or(B)one or more
instruments to convey;the Communication Way'Open Space Parcel to an
appropriate and.qualified entity to hold. for.open space purposes:in.perpetuity,
accompanied by correspondence that such entity is willipg and:able to accept.
such conveyance.(collectively;the Communication'V i v Conveyance,
Ihstru.ment ).
(iii) Subject to Section 5.6.below;.the Applicant A 11 submit.the.foregoing draff
Communication Way Conservation Restriction or Communication:Way.
Conveyance Instrument, as applicable,as approved by the.Comnission;for
the review and approval of all appropriate state-and local authorities, which
may include,Without limitation;.the.Town of Barnstable, its.Conservation
Commission,:and the.-Executive.Office of Energy and Environmental Affairs,.
5.4 Flint Rock Pond Open Space Parcel:
Prior to and.as conditions to issuance of.a Preliminary Certifcate.of.Co* Rance for
Phase.l.or any sub-phase thereof,the following shal l occur with respect o the Flint Rock Pond
Open Space Parcel:
(i) The Applicant shall,at its option, submit.for Commission staff review:and
approval`,which approval shall,not be unreasonably withheld :a draft of either:
(A)a perpetual..conservation.restriction (the"Flint Rock Pond Conservation
Restr;etion"):consistent with:Massachusetts:General Laws Chapter 184;
§§31-33, accompanying plans;.ana.correspondence.identifying 6-grantee
willing and able.to hold.such restriction; or.(B):one or more instruments to
co.rlvey the,Flint.Rock Pond Open Space Parcel to an appropriate and qualified
14•. . ,
8856569:6
entity to hold for open space purposes;accompanied by correspondence that
such.entity is willing and able.to accept such:conveyance(collectively,the
"Fti.nt.RockPond Convevance Instrument"};
(ii) Subject to Section.5..6 below,:if.applicable,.the Applicant shall submit the
foregoing draft Flint Rock Pond.Conservation.Restriction.or Flint.Rock.Pond.
Conveyance. Instrument,as applicable, as approved by the Commission;for
the.revjew and approval of all.appropriate state and local authorities;which
may:�nclude;without limitation
,;the Town of Barnstable, its.Conservation
Commission,and the Executive Office of Energy and Environmental Affairs:
5,5: Restoration Plan Requirements,
The Restoration Plans shall,.at a minimum, incorporate very drought and pest:tolerant;
native; non-invasive plants;which ay include but not be limited to Sweet fern(Comptonia.
peregrine) Be4rberry(Arctostaphylos uva-ursa; Bayberry(Morella pensylvanicum), and
Fragrant srmac,(Rhus aromatics); a mix of native grasses and.forbs; including Little Bluestein
(Sclzzachryium scoparium),Panic grass(Panicum virgatum)and Sheep's fescue(Festuca:sp.);
and herbaceous materials that occur naturally on Cape Cod(Black Eye Susan;Yarrow,.Ox Eye
Daisy).. Grasses, forbs and herbaceous materials may.be hydro seeded,.ideally:in the early:fall, to
enhance germination. The.Restoration Plans shall also include:
{i) a maintenance plan that.provides for an annual mowing in,the fall;
(ii) a soil amendment for individual shrub.plantings and a watering plan both to
ensure establishment of:re=vegetation on the site; and
i) methods to manage or eliminate existing invasive species within the
restoration areas and to,:ensur0hat invasive species are.not introduced to the
site during construction,:consiAent with the Commission's Technical Bulletin
.0.1-001:
Notwithstanding.anything:in this Agreement to the contrary,the Commission may issue a
Certificate of Compliance requested.by the Applicant though the Applicant has failed to perform
all work obligations under a Restoration Plan as.required by this Section 5, subject to the
Applicant.executing an escrow:agreement with the.Commission to ensure completion of such
work,which shall survive the issuance of such Certificate of Compliance. Pursuant to such
escrow agreement,the Applicant will delivers escrow funds to.the Commission.in an amount
equal to at Least one hundred fifty percent.(150%)of the reasonably estimated cost of performing
all outstanding work obligations under such RestoratiomPlan,and shall pursue:completion.of the
work expeditiously underthe.terms of.the.esc.row:agreement.
5.6. Governmental Approvals:
The conservation restrictions and conveyance instruments contemplated by this Section.5
(each an"Oven Space llnstrurinent") are subject to the review:and approval of appropriate state
and local authorities. The Applicant agrees to use all.cominercialfy reasonable efforts to obtain
all:necessary approvals.for the recording of the Open Space Instruments in accordance with the
i5
885656%6.
terms of this Section.S. The Commission shall accommodate any changes reasonably requested.
by the appropriate authorities. Prior to and as a condition to issuance of the first Final Certificate
of Compliance by the Commission for the Revised Project,the Applicant shall cause the Open
Space',Instruments to be recorded with the Barnstable'Registry of Deeds or registered P. g stered with the
Barnstable Re is y Di i try g sir ct of the Land Court,.as applicable, with a copy.and:evidence of such
recorded or registered document thereafter provided to the Commission. The Commission shall
not require.that the.Applicant obtain approval by the Secretary of the Massachusetts Executive
Office of Energy and Environmental.Affairs under Mass.Gen Laws Chapter 184 Section 32 for
conveyance of the Flint Rock:Pond Open Space Parcel or the Communication Way Open Space
Parcel if such Parcel orParcels are conveyed in fee to:An appropriate and qualified,entity to hold.
in perpetuity for.purposes consistent with Article 97 of the Massachusetts.Constitution. in the
event.any Open Space:Instrument is not.approved.by:all applicable authorities;the Corrmmission
finds changes.to.an Open.Space Instrument requested by such authorities to.be`unreasonable;oT
some:other circumstances out of6c.Applicant's control prevent.or:interfere With execution,
recording or registration.of such Instrument/s,the Commission may issue.such.Certificate.of
Compliance requested by the Applicant,.provided the Applicant takes such other actions which,
in the reasonable discretion of the Commission staff,,appropriately serves.the purposes of
preserving high quality open space, protecting wildlife and plant habitat or other natural
resources,providing recreational opportunities, and reducing the 6ffects,of spraw. l:..S.uch actions
may'inclu&but are Inot limited to recording:an:Open Space.Instrument,.as approved by the.
Commission pursuant to this Section 5,to effectuate a private open space restriction;renewable.
b its own terms and under:Cha ter 184 of.the General Laws in favor,of a b Y R ody or
instrumentality of the Town private trust,or.*such other entity as the Commission, in its
reasonable discretion, deems appropriate for such purposes. Tlie Open Space Instruments,as
applicable,shall.be:r ade.seniorto any mortgage encurrmbrance.
5.7.. Bicycle Easement:
If requested by.the.Town or other governmental.authority,the Applicant agrees.-to record
one or more easements(a"BtcVcie Patb.E.ement"):for construction and maintenance of a
ace Parcels and the"Renewable Energy Parcel'.';.approxiniate
bicycle path over the Open Sp ly as
shown.on.the.Open Space Map. If requested; and the Town or other:governmental`authority is,
wilhng o accept the easement,the Applicant.shall cause the Bicycle Path Easement(s)to be
recorded with:the Barnstabkke'gistry of Deeds:or registered with the.Barnstable Registry
District of the.Lana Court,as applicable;wrth:a copy and evidence of such recorded or registered
document thereafter:provided.to the Commission:' .The:Applicantshall provide notice to the
Town through its To Manager of the availabil'ity.ofthe grant:of easement,with a ' py:to the
Commission,which notice shall:be provided prior to,the issuance of.the first Preliminary
Certificate:of.Compliance by the Commission.
SECTION 6: TRANSPORTATION
6.1 Trip.Reduction Plan.
The Applicant shalt implement the.trip reduction plan::attached hereto as Appehwx tI.(the
"Trip lRoductiyn Plan"), prior to.and as a condition to issuance:of any Final Certificate of
16. .
9956569.E
Compliance.by the Commission for the Revise Project, Commission staff shall:conduct a site
inspection to confirm that the Trip Reduction Plan is in operation.
6.2. Trip Reduction Plan Reports.,.
Not more than twelve (12)consecutive months after issuance of any Final Certificate of
Compliance by the Commission for the Revised Project,the Applicant shall provide for
Commission staff review a written report of the effectiveness the Trip Reduction Plan over the
preceding 12 consecutive months: Such report shall detail the manner.in which the measures set
forth.the Trip Reduction Plan have been implemented or achieved:
6:3 Additional Traffic Mitigation:
The Foundation has constructed a right.hand turn lane at the intersection of Independence
Drive and Roiite 1.32,and no further monetary mitigation related to transportation is required
hereunder.
SECTION 7. WASTE MANAGEMENT
7.1 Educational Flyer.
The Applicant shall develop and distribute to residents of the Revised.Project an
educational flyer that'provides information on the Town of arnstable's household hazardous
waste collection and recycling opportunities at the Flint.Street Transfer Station, and of recycling,
facilties.to be maintained.on the Site: Prior to and as a condition to issuance of the fist
requested Final,Certificate of Compliance for the Revised.Project,the Applicant shall submit for
Commission staff review and approval, which approval shall not be:unreasoriably withheld;a
draft educational flyer. for proposed distribution providing information on the Town of
Barristable's household.hazard waste collection and recycling opportunities at the Flint Street
Transfer Station and about recycling facilities on-site which, when it is Approved by Commission
staff,.shall thereafterbe distributed to all future residents of the Revised Project.
7.2 Construction Waste Management Specifications.
Prior to and as a condition to issuance of a`Preliriminary Certificate of Compliance for any
Phase or sub-phase,the Applicant shall submit:to.the.Co* mission construction bid documents;
which Commission staff shall.review to confirm that they,contain.specif cation for proper
management of construction-period waste, solid waste,recyclables,land clearing debris,
construction And demolition debris,and Waste Ban items.
7.3. Solid Waste and;Recycling Management Plan:
The Applicant shall develop and implement a recycling management plan and maintain
recycling facilities on-Site in the operation of the:Revised Project.. Prior to and as a condition to
issuance of the first requested Final Certificate of Compliance for the:Revised project,the
Applicant shall submit for Commission staff review and approval;which approval shall not be.
unreasonably withheld,a draft recycling.management plan which.details recycling facilities to be
maintained on-site, and how recyclables,.particularly Waste Ban items,.will be collected,stored;
17
8856569.6. I����
and recycled in the.operation of the Revised Project. When such plan.is approved by
Commission staff, it shall th6reafter be implemented in the operation of the Revised Project.
SECTION 8: ENERGY
The Revised Project shall be designed to.be"LEED Certifiable'; in accordance with the
standards.established by the U.S. Green Building Council; eligible for Energy Star certification;
and to be com pliant.with the American.Society of Heating, Refrigerating and Air-Conditioning
En gin HR eers ("ASAE":).Standard,90..1-2004. Section 5.4: Prior to issuance of a Preliminary
Certificate of Compliance for any:Phase or sub-phase;the Revised.Project's architect.(the
Arc6iitect")shall submit with_respect.to the Phase:or sub-phase-`Phase for Commission staff
review and approval, which approval shall not be unreasonably withheld; building permit/
construction:plans;a completed LEED Construction and Major Renovations.Project Checklist
evidencing LEED certifiability;a completed Energy Star Certification EligibilityForm
evidencing Energy Star_eligibility;said AS.HRAE Compliance documentation;and the.
Architect's certification to the Commission that the building permi.t/.construction.plahs;fof the
Phase or sub-phase are consistent with and incorporate the.foregoing;.and thus that.the Phase or
sub-phase is.Energy Star eligible;_LEED.certifiable and complies.with said ASHRAE standards.
Priorto and as a condition to issuance of.a Final Certificate of Compliance,for any Phase or sub-
phase-Phase;the Architect.shall certify to the Commission that-such Phase:or.sub-phase
constructed is in.accordance with the:foregoing documentation and-is.Energy Star eligible,
LEED certifiable Arid.conipties.with said.ASHRAE.standards.,
SECTION 9. AFFORDABLE HOUSING
9.1 General.Requirements
A minimum often percent(10%)of the total number of residential units developed in the
Revised Project shall be restricted'as on-Site Affordable Housing Units in perpetuity: Affordable
Housing Units for the Revised Project shall be developed and`restricted according to the MPSs
of the RPP's Affordable Housing Section;
9.2 Phas.e 1:_Affordable Housing Units.
Pursuant to MPS AH.l.8,MPS AHJ-.9; and NIPS AH2.2,the on-Site Affordable.Housing
Units in Phase. 1 shall:
(i) include approximately fifteen.(1.5)1=6edroorn,units, and eight(8)2-bedroom
units;
(ii) be constructed and occupied generally concurrent::with construction and
occupation o:.the market rate dwelling units to be dev.elopea as part of Phase
(iiii) provide at least 700 square feet of net livable space per 1:=bedroom unit and
1.100.square feet.of net livable space:per.2-bedroom unit(for the purposes of
this condition,"Evable:space"shall not include interior mechanical rooms or
spaces);
ra
W6569 6: "
(iv) be constructed and initially located.in accordance with the Revised Plans,
subject.to any changes,in location permitted under a Regulatory Agreement.
entered into by the Applicant and the Town of Barnstable;:and approved by
the.Department of Housing and Community Development,(the"Reirxlita)v
(v) at least five(5)of:the Affordable Units shall be,Asitable or disabled
accessible units;and
(vi) services and amenities included in any:base.residential package for market
units shall.be..included in the residential package for Affordable Housing,
Units.
9:3: Regulatory*Agreement and Ose,Restriction
Prior to and as a,condition to issuance of the first Preliminary Certificate of Compliance
for the Revised Project,the Applicant shall:submit to the Corr►mission a copy of the Regulatory
Agreement:(as then.drafted.or executed): Commission Staff shall review the Regulatory
Agreement to confirm.it materially conforms to the standards set forth in NIPS.AH 1.11,MPS
AH.l.12,MPS AH 1..13; MPS AH..2..1 and MPS At,
2.3 with :respect to the Revised Project's
proposed..rents for any and all Affordable Housing Units, monitoring, and tenant marketing and
selection. The.Applicant shall record with the Barnstable Registry of DeIeds_or.register with the
Barnstable Registry District of the Land Court; as applicable, a copy of an affordable housing -
use restriction°in accordance with the terms.and conditions set forth in the,Regulatory Agreement
and provide the Commission of a copy the.Regulatory. Agreement as so.recorded or registered.,
SECTION 10'. COI*MU*NIT.Y CHARACTER
.1.0.1 Exterior Signage.
The Applicant shatl.request and.obtain approval from the Commission.for any proposed
exterior.signage forihe.Revised.Project. Priorto and as a condition to issuance ofa Preliminary-
Certificate of Compliance forany Phase or sub=phase of the Revised Project;the Applicant shall
submit for Commission staff review and approval, which approval shall not be unreasonably
withheld, proposed exterior signage designs.for the Phase orsub=phase, including any associated
lighting,which shall be:designed.in conformance with MPS HPCC2.12. As.and when:approved.
by Commission staff,:said signage designs shall thereby be incorporated:herein as part of the
Revised Plans approved hereunder.
1.0.2 Screening.
To comply.with MPS HPCC2.5; each Phase shall provide Rill screening of the.Site.from
Independence Drive by.providing a vegetated buffer between it and Independence Drive in
accordance with.the.Revised Plans and Materials. Such vegetated buffer shall be.coord nafed
With landscape acid.stormwater management.plans, and shall be consistent with the conditions set
forth in Sections 4.2 and 10.3 of this Agreement.
19
8856.569.6,
10.3 Landscape Buffers:
Pursuant to MPS HPCC 2.10 and HPCC2.5,the Applicant shall implement and maintain
the Revised Project's.landscaping, including vegetated screening buffers; in.accordance with the
approved landscaping plan and corresponding landscape maintenance protocols included in the
Revised Plans.and Materials. Such vegetated.buffers shah be coordinated with the landscape
and stormwater management plans approved hereunder, and`shall be.consistent with the relevant
conditions set.forth in:Sections 4.and 1`0 herein. Surface parking.areas on Phase l shall be.
located to the side.or.rear of:buildings:(relative;to.Independence.Drive)as depicted on the.
Revised Plans.
10.4 " Exterior Materials.
Any exterior building materials used.in:connection with the constructions; maintenance
Or repair of the Revised.Project shall be.substantially consistent with.the Facade Materials
included:with the:Revised Plans listed on Ap_pendax D, attached hereto, and with the Village at
Barnstable Specification List included with the Revised Materials listed onpp Aendix'E;attached
hereto. If unforeseenchanges are made to the exterior materials used for any Phase or sub-phase
of.the.Revised Project as construction proceeds;prior to selection and installation of,
exterior
materials,the Applicant shall submit for.Commission.staff review and,approval; which.approval
shall not be unreasonably withheld, additional.exterior material information sufficient to allow
Commission staff to determine ifthe proposed alternate materials are,consisteiit with this Section
TO 4. Alternate exterior materials found o be consistent with this Section 10.4 maybe utilized
upon written Commission staff approval.; and do not constitute:an amendment of this Agreement
per Section 8.0.of the.Development.AgreemenCRegulations
10.5, Exterior Lighting Fixtures:.
All exterior lighting fixtures, including but not limited to all site lighting,used in
connection with the construction,maintenance or repair of the Revised Project shall be:
substantially consistent with the lighting plans and fixtures depicted on sheets.7 and 8.of the.
Givil.Site Plans included with the Revised Plans listed on Appendix D,attached hereto,.and with
the Village at;Barristable Specification List included with the:Revised IVlaterials listed on
Appendix ✓attached.hereto,unless otherwise.approved in writing by Commission staff:: If
unforeseen changes are made to the exterior lighting design of a.Phase as:constmction proceeds;
prior to selection and installation of exterior lighting fixtures, th.e Applicant shall submit for
Commission.staff review and approval which approval shall not be:unreasonablywithheld
additional exterior lighting design information sufficient to.allow Commission staff to..determine
ifthe proposed alternate.fixtures are consistent with this Section 10:5. Alternate,exterior:light
fixtures found to be.consistent with this Section.l0 5 may be utilized upon written Commission:
staff approval;and.do not constitute an amendment of his Agreementper Section 8:0 of the
Developmeht,Agreetnent:Regulations:
6s56569:.6
SECTIONI L.N USCELLANEOUS.
11.1 Mitigation for Revised Project:
In the event that.the Applicant does not commence construction of the Revised.11
Project all:mitigation:proposed hereunder shall no longer be,.required. A11 actions of the Foundation for
which it has been given credit for mitigation as enumerated he may be credited as applicable
as credits for future.projects of the.Foundation;or its assigns; as appropriate.
11.2 Assignment,
The obligations;covenants and agreements herein granted.and established, including all
benefits.and.burdens,shall run with the.land comprising the Site; and.shall:b. binding upon and
inure to the:benefit of-* their respective successors and assigns: The Parties
acknowledge and agree that the term"Ars'pH' t"as used herein shall mean:and refer to the
Foundation until.the&te i.s.conveyed to Greystar or its designated:assignee and,until such
conveyance,the;Foundation mayexercise in full the rights and obligations of.the Applicant
hereunder. Upon said conveyance;the rights and obligations of the Applicant hereunder.shall
automatically be assigned to,:and assumed by,Gre..s.t or its designated assignee,.and.the
Foundation.shall no longer be a Party to this Agreement. Subject to the foregoing, any Party to
this Agreement may assign its rights:and obligations under this.Agreement to another:entity
(eaclia"New Entity')without the consent of any other Party, provided that any such assign merit
shall be in writing,shall clearly identify the'scope of.the rights or obligations assigned, and the
rights and obligations, if any;:retained by the assignor. Without limiting the foregoing;the.
Applicant inay subdivlide(including through the creation.of one or more condo�niniurhs orIong
term ground leases)the Site so long as such subdivision is consistent'with the:terms.and
conditions of this Agreement, and the Applicant may transfer all or any-subdivided portion of the
Site to aNew Entity;subject to.the Applicant's and any.New Entity's acknowledgement.that this.
Agreement shall run with title to each.subdivided portion of the Site ancl:shall be.binding upon
.
the Applicant or New Entity insofar as it is the owner of the Site; and each of its successors or
assigns:as to the obligations which arise underthis Agreement during their respective, of
ownership of the Site.and/or their respective.subdivided portion(s)thereof,provided that each
predecessor-in-title shill be forever released.from this Agreement upon procuring a:written
acknowledgemment from.its immediate'successor; addressed to the Commission,acknowledging
and agreeing thatsuoh successor=in-title is bound.by.:the terms.of this Agreement and that this,
Agreement shall.be enforceable against such successor by the Commission with respect to such
saccessor's subdivided portign(s)of the:Site the:obligations created hereunder shall not be
treated as assumed by
'any New Entity until such notice is delivered to the Commission. For
purposes Of this Section,the.Foundation.shall not lie deemed to be a predecessor in title..
113 Limitations.on Liability:
The obligations of the Applicant or any New Entity do not constitute personal.obligations
of their members; trustees, partners,directors,officers or shareholders, or any direct or indirect
constituent entity or any.of their affiliates or agents: The Commission shah not seek recourse
Against any of the foregoing or any of their personal assets for sat sfacfion of any Liability with
respect to this:Agreemenf.or.otherwise. The liability of the Applicant.or a New.Entity is.in all
2.1.
8856569.E:
cases limitedto their interest in the Site,or subdivided portion thereof atthe time such liability is
incurred and shall:not extend.to any other portion of the Site.for which another.Party.has
assumed responsibility pursuant to Section 11:2`hereof. In the.event that'all or any portion of the
Site is subjected to a condominium reginie.or a long term ground lease; he condominium
association or the ground lessee,as applicable,shall be deemed:to be the owner/New Entity of
the affected portion:of the Site. In no event shall the Applicant or New.Entity be liable for any
incidental, indirect;punitive,special or consequential damages.: No entity comprising the
Applicant or any New Entity shallbe:.l able for any obligation or covenant hereunder notarising
during the time of its ownership or interest in:the Site or.the applicable subdivided portion
thereof Notwithstanding anything to the contrary in:.this:Agreement, the issuance of A.Final
Certificate of Compliance for any.particular Phase(or-sub-phase or component thereof.)shall be.
COlIC1U$IVe.evidence Of the compliance of such Phase.(or sub-phase or component)with this..
Agreementthe.time such.certificate was issued, and shall terminate the.obligations.and liabilities
of the owner of such Phase(or sub-phase or'component)under this Agreement; except for any
ongoing maintenance, repair,operationaland:related obligations,which shall surviweahe.
issuance of a Final.Certificate of Comp]iance:
l l.4 Estoppel Certificate,
Each Party agrees,from time to time,:Upon not less than twenty-one(21)days' prior
written request from.the.other,to execute,acknowledgeand deliver a statement in writing
.certifying (i)that this Agreement is unmodified, and in full force and effect(or.if there have
been.modifications,setting:them forth,in.reasonable detail), (ii.}that the Party deliveringsuch
statement has no defenses, offsets or counterclaims against its obligations o:perforria its
covenants hereunder(or.if.there are any of the foregoing, setting hem forth in reasonable detail);
(i ii)that there are.no uncured defaults of either Party under.this Agreement(or, if there are any
defaults, setting them forth~in reasonable:detail);and(iv) any other information:reasonably
requested by the Party seeking such statement. If the Party delivering an estoppel certificate is
unable to verify compliance by the other.Party With.certain provisions hereof despite the.use of
due diligence, it shall so statewith specificify in the.estoppel certificate; and deliver an updated
estoppel-certificate as to such provisions as soon thereafter'as practicable.Any.such statement
delwered pursuant` a this Section:11.4.shall be.in a form:re asonably.acceptable to, and may be
relied upon by any, actual or prospective..purchaser;tenant,mortgagee or other Party having an
interest.in:the Project:.The Executive:Director or:his.desig :isheceby authorized to execute
and deliver any such estoppel certificate on behalf fthe Commission.
11.5 Notices: .
All notices and other'communications that are required:;or may be.-given under:this
Agreement shall be:in writirig and shall b.e sent by certif ed mail return receipt requested,to the
fol lowing addresses or to such other place as any Party may designate by.notice to the.other
.Party:
if to the.Commission:
Cape Cod.Commission
322$ Main'Street
•22
8856569.E
P.O. Box 2.26,
Attn:Chief Regulatory Officer.
Phone: (508) 3.62-3828
Facsimile: (508)362-3136
With a copy to:
Gareth Orsmond, Esq.
Pierce.Atwood LLP
100 Summer Street, 22nd Floor
Boston,MA 02110
If to Greystar:
Brandon Henry
Greystar GP 11, LLC
8405.Greensboro Drive; Suite 500
McLean, Virginia22102
Phone:.(703).677-.91 11
Facsimile:.(703)714-1419
Email:bhe�e star.com
With a copy to:
Steven Schwartz, Esq.
400 Atlantic Avenue
Boston,.Massachusetts:02110-3333
Phone: (617)`574-4147
Facsimile: (617)574-7636
Email:sschi�artzoulstansiorrs coin
If to the Foundation:
Mark Thompson,President
The.Lyndon Paul Lorusso Charitable Foundation of 2002
P:b::Box 1776.
Hyannis, Massachusetts 02601
Email: iaittet end'eiice} ai k l 77 Y-1 verizon Stet
With a.copyto:
Ron.S.Jansson,Esq.
P.O. Box 147
Barnstable, Massachusetts 02630
Phone: (508).362-3377.
Facsirnile: (508)362-3333
Emai l:',tansorilaW.Qdo ricast'net
23
8856569.6
And a further copy by email only to Steve.Mack at srriack 10440 ct"?gol:com
11.6 Choice of Law,.Etc:
This.Development Agreement shall be construed and interpreted in accordance:with the
laws of the.Commonwealth of Massachusetts.The state.and federal- its sitting in the
Commonwealth of Massachusetts:shall have exclusive jurisdiction over any claim or dispute
arising under or in connection with this.Agreement:
1.1.7 Counterparts.
This Development Agreement maybe executed in counterparts,eaoh of which will be
deemed an original;but all of which taken together shall constitute one and the same instrument:
The Parties.agree.that a signature sent by facsimile or electronic mall to another Party or counsel
for another Party shall have the same.force an.d;effect.as an original signature.
1:1;8 Entire Agreement,Amendments.and.Waivers;.
This.Development Agreement;together with the Appendices hereio.(whic.h are
7.
incorporated herein by reference and made a.part hereof)constitute the entire.agreernent among
the Parties pertaining to the subject matter hereof and supersede all prior agreements,
understandings, negotiations and.discussions, whether oral or written,of the Parties with respect
thereto.No amendment;.supplement,.modificatiion or waiver of this.Agreement.shalI be:binding
unless executed in writing by the Party to be bound thereby.
11.9. Invalidi ty.
If any of the provisions contained in this Agreement'shall, for any reason, be held-to be
invalid, illegal,or unenforceable in,any respect,then,to the maximum extent permitted.by law,:
such invalidity, illegality or unenfomeabilityshall not affect anyother provision of this
Agreement.
l l:10 Limited Undertaking..
Nothing in this Agreement shall be construed'as an undertaking by the.Applicant to
construct or complete the Revised Project, or.any portion:thereof,and:thd obligations hereunder
being limited to compliance with the provisions:hereof to the extent the Revised Project,or any
portion:thereof,is commenced,constructed or completed. The Applicant's rights:and obligations
with respect,to the:development,of ah 06se shal I m..no way require.or depend upon the
development`of any,subsequent Phase, including.the.timing with`respect thereto:
1.111 Recording:
This.Agreement shall,not take effect until a fullYexecuted copy of the same has.been
.recorded with the Barnstable Registry of Deeds,the costs of recording to be paid by
Applicant..
[Signatures on the following page(s)]
24.
8856569,E
IN WITNESS WHEREOF,the Parties have executed this Agreement under seal as of the
day and year first above written.
Cape Cod Commission
By:
Name: G! 7
Title:t j0,g,�,,fi,,t4 AI..;D �t4u..rjz
The Lyndon Paul Lorusso Charitable
Foundation Of 2002
By: f.
Name: fl
Title: r�
GREYSTAR GP II,LLC a Delaware limited
liab' o mpany
By: 1
Name:Brandon Henry
Title:Vice President
Hereunto Duly Authorized
COMMONWEALTH OF MASSACHUSETTS
Barnstable,ssC� �i/t 52016
Before me,the undersigned notary public,personally appeared 7m5w
in his/her capacity as fly &-A44",
of the Cape Cod Commission,whose name is signed on the preceding document,and such person
acknowledged to me that he/she signed such document voluntarily for its stated purpose. The identity of
such person was proved tome through satisfactory evidence of identification,which was[ ]photographic
identification with s ignatur:e issued by a federal or state governmental agency, [ J oath or affirmation of a
credible witness,or&] personal knowledge of the undersigned.
�L\ JEFFREY MARK RISEIRO
Notary Public
COMMONWEALTH OF MASSACHUSETTS ^�
My Commission Expl►es �1
Ootober 08, 2073. Notary PAlic
SEAL My Commission Expires:
8856569.6
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