HomeMy WebLinkAboutDraft Conservation Restriction Smiths Creek 8.20.2024 MHR 08.22.2024 KCC edits.mhrGrantor: ORENDA WILDLIFE LAND TRUST, INC.
Primary Grantee: TOWN BARNSTABLE
Secondary Grantee: THE COMPACT OF CAPE COD CONSERVATION TRUSTS, INC.
Address of Premises: 564 and 0 Main Street (Route 6A), (West) Barnstable, MA 02668
For Grantor’s title see:Barnstable County Registry of Deeds at Book_____, Page_____, and Barnstable Registry District of the Land Court Certificate#.
For Grantor’s plan see: Barnstable County Registry of Deeds at Plan Book 166, Page 141 and Land Court Plan 38226-B.
GRANT OF CONSERVATION RESTRICTION
STATEMENT OF GRANT
ORENDA WILDLIFE LAND TRUST, INC., a Massachusetts nonprofit corporation with an office address at 4011 Main Street, Cummaquid, MA 02637 and a mailing address of P.O. Box 669, West Barnstable,
MA 02668, being thesoleowner of the Premises as defined herein, for its successors and assigns (“Grantor”), acting pursuant to Sections 31 and 32 of Chapter 184 of the Massachusetts
General Laws, grants, with QUITCLAIM COVENANTS,IN PERPETUITY AND EXCLUSIVELY FOR CONSERVATION PURPOSES tothe INHABITANTS OF THE TOWN OF BARNSTABLE, a Massachusetts municipal corporation
with principal offices at Town Hall, 367 Main Street, (Hyannis), Town of Barnstable, Barnstable County, Massachusetts 02601-3907, acting by and through its TOWN MANAGER, its permitted
successors and assigns (“PrimaryGrantee”), for consideration of One Hundred Thousand and 00/100 Dollars ($100,000.00) paid, and to THE COMPACT OF CAPE COD CONSERVATION TRUSTS, INC.,
a Massachusetts nonprofit corporation with an office address at 36 Red Top Road, Brewster, MA 02631 and a mailing address of P.O. Box 443, Barnstable, MA 02630,itspermitted successors
and assigns (“Secondary Grantee”), fornominal consideration, the following Conservation Restriction ontwo tracts of adjoining landlocated inthe Town of Barnstable, Barnstable County,
Commonwealth of Massachusettscontaining a total of 5.46 acres, more or less,(“Premises”), which Premises is more particularly described in Exhibit A and shown in the attached reduced
copies of survey plansin Exhibit B, both of which are incorporated herein and attached hereto.As used herein, the terms “Grantee” and “Grantees” shall refer to the Primary Grantee and
the Secondary Grantee collectively.
The Primary Grantee acquired this Conservation Restriction utilizing, in part, Community Preservation Act funds pursuant to Chapter 44B § 1 et seq. of the Massachusetts General Laws,
which funds were authorized for such purposes by a vote of the Barnstable Town Council held on , on Agenda Item .An attested copy of the Town Council Order is attached hereto as Exhibit
C.
PURPOSES:
This Conservation Restriction is defined in and authorized by Sections 31and 32, of Chapter 184 of the Massachusetts General Laws and otherwise by law. The purposes of this Conservation
Restriction (“Purposes”) are to ensure that the Premises will be maintained in perpetuityin its natural, scenic, or open condition and available forpassive outdoor recreational use,
and to prevent any use or change that would materially impairthe Conservation Values (as defined below).
Conservation Partnership. The fee interest in the Premiseswas acquired utilizing, in part, assistance from the Conservation Partnership program which requires, pursuant to Section 2A
of Chapter 286 of the Acts of 2014 and Section 2A of Chapter 102 of the Acts of 2021, the conveyance of this Conservation Restriction.(PENDING)
TheConservation Values protected by this Conservation Restriction include the following:
Open Space. The Premises contributes to the protection of the scenic and natural character of Barnstable and the protection of the Premises will enhance the open-space value of these
and nearby lands. The Premises abuts land already conserved, including 17 acres± of privately-owned conservation restriction-protected land to the northeast.The protection of the Premises
will continue the decades-long effort by the Town of Barnstable, Department of Fish and Game, the Barnstable Land Trust and the Grantor to preserve ecologically important areas within
the3,700+ acre Barnstable Great Marsh.
ACEC. The Commonwealth of Massachusetts, through the authority of the Secretary of Energy and Environmental Affairs under Massachusetts General Law Chapter 21A, § 2(7), designated the
Sandy Neck Barrier Beach System as an Area of Critical Environmental Concern (ACEC) in 1978. The Premises includes 1.75 acres± of area located within the ACEC.
Floodplain. The Premises includes 1.9 acres± of area designated within the Federal Emergency Management Agency (FEMA) 100-year Special Flood Hazard Area with a Base Flood Elevation of
13-14 feet along Smiths Creek.The protection of the Coastal Floodplain can slow down flood waters and allow them to flow across a natural landform surface, providing frictional resistance
and reducing their energy and destruction potential, allow flood waters to spread over a wide area without obstructions, allow flood waters to be detained, absorbed into the ground,
or evaporated into the atmosphere, and protect the land from storm erosion by providing a substrate for vegetation that helps to stabilize sediments and slow down flood waters.
Soils and Soil Health. The Premises includes 2.25 acres± of Farmland of Statewide Importance and 4.4 acres± of Prime Forest Land, Forest of Statewide and Local Importance, and Wetland
of State and Local Importanceas identified by the USDA Natural Resources Conservation Service (source:MassGISMassMapper). The protection of the Premises will promote healthy soils and
healthy soils practices as such terms are defined in Chapter 358 of the Acts of 2020, which added definitions of these terms to Section 7A of Chapter 128 of the Massachusetts General
Laws.
Wildlife Habitat. The Premises is in close proximity to(175 feet±) areasdesignated by the MA Division of Fisheries and Wildlife acting by and through its Natural Heritage and Endangered
Species Program (NHESP) as “Priority Habitats of Rare and Endangered Species,”the protection of which aligns with NHESP’s wildlife and habitat protection objectives.
Public Access. Public access to the Premises will be allowed for passive outdoor recreation, education and nature study.
Biodiversity. The Premisesis designatedasBioMap Wetland Core Habitat and Wetland Core Buffer Critical Natural Landscape, 0.15 acres± of the Premises is designated as BioMapCritical Natural
Landscape Blocks, and 1.9 acres± of the Premises is designated as Critical Natural Landscape Coastal Adaptation Area,as defined by the Massachusetts Natural Heritage and Endangered Species
Program. BioMap, last updated in 2022, was designed to guide strategic biodiversity conservation in Massachusetts by focusing land protection and stewardship on the areas that are most
critical for ensuring the long-term persistence of rare and other native species and their habitats, exemplary natural communities, and a diversity of ecosystems.BioMapis also designed
to include the habitats and species of conservation concern identified in the State Wildlife Action Plan.
Habitat Connectivity and Ecosystem Integrity. The Premises includes areas identified by the UMass Conservation Assessment and Prioritization System (CAPS)asFreshwater Wetland and Aquatic
Landscape of high ecological integrity. CAPS measures the ecosystem integrity of land and can be used to demonstrate the value of land as having outstanding unfragmented habitat value.
Water Quality. All of Cape Cod is a high-yield aquifer, designated as a Sole Source Aquifer by the United States Environmental Protection Agency (USEPA) in 1982. All of the Premises
lies within 300 feet of freshwater and tidal wetlands, including 900 feet of streambank on Smiths Creek. Protection of the Premises will help protect the coast from additionaldevelopment
and associated septic systems whose leachate would contribute nitrogen to Barnstable Harbor and contribute to eutrophication and possible algal blooms.
Wetlands. The wooded and shrub swamp wetlands on the Premises provide valuable habitat for a diverse array of wildlife species as well as provide the many other public benefits of wetlands
protection recognized by the Commonwealth of Massachusetts (Section 40 of Chapter 131 of the Massachusetts General Laws).
Climate Change Resiliency. The Premises is identified as an area of above averageTerrestrial Resilience according to The Nature Conservancy’s (TNC) Resilient Land Mapping Tool, including
above average Landscape Diversity and slightly above average Local Connectedness. TNC’s Resilient Land Mapping Tool was developed in order to map ‘climate-resilient’ sites that are ‘more
likely to sustain native plants, animals, and natural processes into the future.’ The protection of these climate resilient sites is an important step in both reducing human and ecosystem
vulnerability to climate change and adapting to changing conditions.
Consistency with Clearly Delineated Barnstable County Conservation Policy. Protection of the Premises will assist in achieving Barnstable County conservation goals. In July 1991, the
Barnstable County Assembly of Delegates, pursuant to the Cape Cod Commission Act (Chapter 716 of the Acts of 1989), adopted a Regional Policy Plan, amended in 1996, 2002 2009, 2012,
and 2018 which provided, inter alia (references are to the 2018 RRP, amended in 2021 to accommodate climate change goals and objectives):
“To maintain a sustainable supply of high quality untreated drinking water and protect, preserve, or restore the ecological integrity of Cape Cod’s fresh and marine surface water resources.”
(Water Resources Goal, p. 54) and
Protect and preserve groundwater quality
Protect, preserve and restore fresh water resources
Protect, preserve and restore marine water resources
“To protect, preserve, or restore the quality and natural values and functions of inland and coastal wetlands and their buffers” (Wetland Resources Goal, p. 61); and
“Protect wetlands and their buffers from vegetation and grade changes”
“Protect wetlands from changes in hydrology”
“Protect wetlands from stormwater discharges”
"To protect, preserve, or restore wildlife and plant habitat to maintain the region's natural diversity" (Wildlife and Plant Habitat Goal, p. 61); and
"Maintain existing plant and wildlife populations and species diversity."
Protect and preserve rare species habitat, vernal pools, 350-foot buffers to vernal pools.
"To conserve, preserve, or enhance a network of open space that contributes to the region's natural and community resources and systems" (Open Space Goal, p. 61);
"Protect and preserve natural, cultural, and recreational resources;"
"Maintain or increase the connectivity of open space;"
"Protect or provide open space appropriate to context."
“To prevent or minimize human suffering and loss of life and property or environmental damage resulting from storms, flooding, erosion, and relative sea level rise, including but not
limited to that associated with climate change” (Coastal Resiliency Goal, p.62); and
“Minimize development in the floodplain”
“Plan for sea level rise, erosion, and floods”
“Reduce vulnerability of built environment to coastal hazards”.
This Conservation Restriction will advance each of these objectives. The Water Resources Goal will be served by protecting ground and coastal waters from detrimental impacts of development,
the Wetland Resources Goal will be served by protecting coastal wetlands and their buffers from detrimental impacts of development. Wildlife and Plant Habitat Goal will be served because
the protection of the Premises will protect BioMap-designated habitat areas. The Open Space Goal will be served by protecting a scenic area with public access. The Coastal Resiliency
Goal will be met by preventing man-made disturbance within the FEMA Special Flood Hazard Area and by preserving coastal areas suitable for habitat migration in response to climate change
impacts.
Consistency with Clearly Delineated Town of Barnstable Conservation Policy. Protection of the Premises will further the Town of Barnstable’s documented goals regarding conservation
land. The Town outlined its conservation goals in its Open Space and Recreational Plan (1984, amended 1987, 1998, 2005, 2010, 2018), identifying goals, policies, and actions to guide
conservation efforts, among them the goal of preserving “quality open spaces throughout the Town which protect and enhance its visual heritage.” Additional objectives include (references
are to the 2018 Plan):
1) "Preservation of open space for protection of drinking water resources, and for protection of other natural, historic and scenic resources is a community-wide priority; and,
2) Protection of open space should continue to be an integral component of the Town's efforts." (p. 6)
To achieve this vision, the Plan sets several goals for the town including:
1) "To protect and maintain the maximum amount of open space to enhance environmental protection, recreational opportunities, and community character; and,
2) “Plan, coordinate and execute open space protection measures that complement community efforts to protect water supply, protect fresh and marine surface waters, [and] preserve historic,
scenic and cultural resources..." (pp. 10-11).
Additionally, the Barnstable Town Council’s Strategic Plan for fiscal year 2024-2025 identified the goal to “conserve and protect areas in the town that are most significant as natural
and historical resources for water supply, visual quality, outdoor recreation, public access, wildlife habitat and cultural history.”
Moreover, in 1981, the Town of Barnstable adopted a Conservation Restriction Program consisting of policies and guidelines, in particular an Open Space Policy, approved by the Board
of Selectmen, Assessors, and Conservation Commission, which encourages the use of conservation restrictions in perpetuity to protect natural resources in accordance with the purposes
of the Open Space and Recreation Plan, and which further specified that purposes of a conservation restriction could include the following:
preserve scenic view;
prevent disturbance of wetlands;
preserve a shoreline;
prevent the cutting of trees or forests;
preserve open space;
preserve important natural habitats of fish, wildlife or plants; and,
limit or prevent construction on land of natural resource value.
Consistency with Clearly Delineated State Conservation Policy.The protection of the Premises will advance the goals of the Massachusetts Clean Energy and Climate Plan for 2050, published
in 2022. The Commonwealth aims to permanently conserve at least 40% of Massachusetts lands and waters by 2050.
Consistency with Clearly Delineated Federal Conservation Policy. Protection of the Premises meets the definition of “conservation purposes” as defined in 26 CFR 1.170A-14(d)(1), because
its conservation would: promote protection of state-recognized habitats, as well as preserve open space, provide for passive public recreation, and maintain the scenic and rural character
of the village of West Barnstable for enjoyment by the public.
Historic Resources.The Premises includes 65 feet of frontage on State Route 6A, also known as the Old King’s Highway. In 1973, the Massachusetts legislature adopted the Old Kings’ Highway
Historic District to protect the historical integrity of the route. In 1981 the Mass. Department of Environmental Management (now the Department of Conservation and Recreation) identified
the Barnstable Great Marsh as one of the few Noteworthy Landscapes in the state. The protection of the Premises will prevent a new curb cut, driveway and forest cutting along the scenic
roadway.
PROHIBITED and PERMITTED ACTS AND USES
Prohibited Acts and Uses
The Grantor will not perform or allowothers to perform the following acts and uses which are prohibited on, above, and below the Premises:
Structures and Improvements.Constructing, placing, or allowing to remain any temporary or permanent structure including without limitation any building, tennis court, landing strip,
mobile home, swimming pool, asphalt or concrete pavement, graveled area, roads, parking area, sign, fence, gate, billboard or other advertising, antenna, utilities or other structures,
utility pole, tower, wind turbine, solar panel, solar array, conduit, line, septic or wastewater disposal system,storage tank, or dam;
Extractive Activities/Uses.Mining, excavating, dredging, withdrawing, or removing soil, loam, peat, gravel, sand, rock, surface water, ground water, or other mineral substanceor natural
deposit, or otherwise alteringthe topography of the Premises;
Disposal/Storage.Placing, filling, storing or dumping of soil, refuse, trash, vehicle bodies or parts, rubbish, debris, junk, tree and other vegetation cuttings,liquid or solid waste
or other substance or material whatsoever;
Adverse Impacts to Vegetation.Cutting, removing, or destroying trees, shrubs, grasses or other vegetation;
Adverse Impacts to Water, Soil, and Other Features.Activities detrimental to drainage, flood control, water conservation, water quality, erosion control, soil conservation, natural habitat,
archaeological conservation, or ecosystem function;
Introduction of Invasive Species.Planting or introducing any species identified as invasive by the MassachusettsInvasive Plant Advisory Group or identified as invasive in such recognized
inventories as the Massachusetts Introduced Pests Outreach Project, the Northeast Aquatic Nuisance Species Panel, or other such inventories, and any successor list as mutually agreed
to by Grantor and Grantees;
Motor Vehicles.Using, parking, or storing motorized vehicles, including motorcycles, mopeds, all-terrain vehicles, off-highway vehicles, motorboats or other motorized watercraft, snowmobiles,
launching or landing aircraft, or any other motorized vehicles, acknowledging that vehicles necessary for public safety (i.e., fire, police, ambulance, other government officials)may
have a legal right to enter the Premises;
Subdivision.Subdividing or conveying a part or portion of the Premises (as compared to conveyance of the Premises in its entirety which shall be permitted), it being the Grantor’s and
Grantee’s intention to maintain the entire Premises under unified ownership;
Use of Premises for Developing Other Land.Using the Premises towards building or development requirements on this or any other parcel;
Adverse Impacts to Stone Walls, Boundary Markers.Disrupting, removing, or destroying stone walls, granite fence posts, or any other boundary markers;
Hunting and Trapping. Hunting and trapping are strictly prohibited on the Premises;
Residential, Commercial, or Industrial Uses.Using the Premises for residential, commercial or industrial purposes; and,
Inconsistent Uses.Any other usesof the Premises that are inconsistent with the Purposes orthat would materially impair the Conservation Values.
Permitted Acts and Uses
Notwithstanding the Prohibited Acts and Uses described in Paragraph III.A, the Grantor may conduct or permit the following acts and uses on the Premises, provided they do not materially
impair the Purposes and/or Conservation Values. In conducting any Permitted Act and Use, Grantor shall minimize impacts to the Conservation Values to ensure any such impairment thereto
is not material.
Vegetation Management.Maintaining vegetation, including pruning, trimming, cutting, and mowing, and removing brush,all to prevent, control, and manage hazards, disease, insect or fire
damage, and/or in order to maintain the condition of the Premises as documented in the Baseline Report (see Paragraph XV);
Non-native, Nuisance, or Invasivespecies. Removing non-native, nuisance, or invasive species, interplanting native species, and controlling species in a manner that minimizes damage
to surrounding, non-target species and preserves water quality;
Composting. Stockpiling and composting stumps, trees, brush, limbs, and similar biodegradable materials originating on the Premises, provided that no stockpiling or composting shall
occur within 100 feet of a wetland;
Natural Habitat and Ecosystem Improvement. With prior written approval of the Grantees, conducting measures designed to restore native biotic communities, or to maintain, enhance or
restore wildlife, wildlife habitat, ecosystem function, or rare or endangered species including planting native trees, shrubs, and other vegetation;
Archaeological Investigations. Conducting archaeological activities, including without limitation archaeological research, surveys, excavation and artifact retrieval, but only in accordance
with an archaeological field investigation plan, which plan shall also address restoration following completion of the archaeological investigation,prepared by or on behalf of the Grantor
and approved in advance of such activity, in writing, by the Massachusetts Historical Commission State Archaeologist (or appropriate successor official)and by the Grantees. A copy of
the results of any suchinvestigation on the Premises is to be provided to the Grantees;
Trails. Maintaining and constructing trails as follows:
Trail Maintenance.Conducting routine maintenance of trails, which may include widening trail corridorsup to six (6) feet in width overall, with a treadway up to four (4) feet in width.
New Trails.Withprior written approval of the Grantee, constructing new trails or relocating existing trails, provided that any construction or relocation results in trailsthat conform
with the width limitations above.
Trail Features.With prior written approval of the Grantee, constructingbog bridging, boardwalks, footbridges, railings, steps, culverts, benching, cribbing, contouring, or other such
features, together with the use of motorized equipment to construct such features;
Signs. Constructing, installing, maintaining, and replacing signs and informational kiosks with respect to the Permitted Acts and Uses, the Purposes, the Conservation Values, trespass,
public access, identity and address of the Grantor, sale of the Premises, the Grantees' interest in the Premises, boundary and trail markings, any gift, grant, or other applicable source
of support for the conservation of the Premises;
Motorized Vehicles.Usingmotorized mobility vehicles by persons with mobility impairmentsand as otherwise permitted herein for land management purposes; and,
Outdoor Passive Recreational and Educational Activities. Hiking, nature observation, nature and educational walks and outings, outdoor educational activities, and other non-motorized
outdoor recreational and educational activities.
Site Restoration
Upon completion of any Permitted Acts and Uses, any disturbed areas shall be restored substantially to the conditions that existed prior to said activities, including with respect tosoil
material, grade, and vegetated ground cover.
Compliance with Permits, Regulations, Laws
The exercise of any Permitted Acts and Uses under Paragraph III.B shall be in compliance with all applicable federal, state and local laws, rules, regulations, zoning, and permits, and
with the Constitution of the Commonwealth of Massachusetts. The inclusion of any Reserved Right requiring a permit, license or other approval from a public agency does not imply that
the Grantees or the Commonwealth takes any position whether such permit, license, or other approvalshould be issued.
Notice and Approval
Notifying Grantee.Whenever notice to or approval by Grantees is required, Grantor shall notify or request approval from Grantees, by a method requiring proof of receipt, in writing not
less than sixty (60) days prior to the date Grantor intends to undertake the activity in question, unless a different time period is specified herein. The notice shall:
Describe the nature, scope, design, location, timetable and any other material aspect of the proposed activity;
Describe how the proposed activity complies with the terms and conditions of this Conservation Restriction, and will not materially impair the Purposes and/or Conservation Values;
Identify all permits, licenses, or approvals required for the proposed activity, and the status of any such permits, licenses, or approvals; and,
Describe any other material aspect of the proposed activity in sufficient detail to permit the Grantees to make an informed judgment as to its consistency with the Purposes and Conservation
Values.
Grantee Review.Where Grantee’s approval is required, the Secondary Grantee, within thirty (30) days of receipt of Grantor’s request, shall notify the Primary Grantee of the Secondary
Grantee’s decision. Within sixty (60) days of the Primary Grantee’s receipt of Grantor’s request, the Primary Grantee shall either affirm, amend or reverse the decision of the Secondary
Grantee, shall notify the Secondary Grantee thereof in writing, and shall issue its decision to the Grantor in writing. The Primary Grantee’s decision shall in all cases be the final
and controlling decision binding on both Grantees. In the event that no decision is received from the Secondary Grantee within thirty (30) days, the Primary Grantee shall proceed to
issue its decision within sixty (60) days of Grantor’s request.Grantee’s approval shall only be granted upon a showing that the proposed activity will minimize impacts to the Conservation
Values and will not materially impair the Purposes and/or Conservation Values.Grantee may require Grantor to secure expert review and evaluation of a proposed activity by a mutually
agreed upon party.
Resubmittal.Grantees’ failure to respond within sixty (60) days of receipt shall not constitute approval of the request. Grantor may subsequently submit the same or a similar request
for approval.
INSPECTION AND ENFORCEMENT
Entry onto the Premises
The Grantor hereby grants to the Grantees, andtheirduly authorized agents or representatives, the right to enter the Premises upon reasonable notice and at reasonable times, for the
purpose of inspecting the Premises to determine compliance with or to enforce this Conservation Restriction.
Legal and Injunctive Relief
Enforcement.The rights hereby granted shall include the right to enforce this Conservation Restriction by appropriate legal proceedings and to obtain compensatory relief,including without
limitation, compensation for interim losses (i.e., ecological and public use service losses that occur from the date of the violation until the date of restoration)and equitable relief
against any violations, including, without limitation, injunctive reliefand relief requiring restoration of the Premises to its condition prior to the time of the injury (it being agreed
that the Grantees will have no adequate remedy at lawin case of an injunction). The rights hereby granted shall be in addition to, and not in limitation of, any other rights and remedies
available to the Grantees for the enforcement of this Conservation Restriction.
Notice and Cure.In the event the Grantees determine that a violation of this Conservation Restriction has occurred and intend to exercise any of the rights described herein, the Grantees
shall, before exercising any such rights, notify the Grantor in writing of the violation. The Grantor shall have thirty (30) days from receipt of the written notice to halt the violation
and remedy any damage caused by it, after which time Grantees may take further action, includinginstituting legal proceedings and entering the Premises to takereasonable measures to
remedy, abate or correct suchviolation, without further notice.Provided, however, that thisrequirement of deferment of action for thirty (30) days appliesonly if Grantor immediately
ceases the violation and Grantees determine that there is no ongoing violation. In instances where a violation may also constitute a violation of local, state, or federal law, the Grantees
may notify the proper authorities of such violation.
Reimbursement of Costs and Expenses of Enforcement.Grantor covenants and agrees to reimburse to Grantees all reasonable costs and expenses (including counsel fees) incurred by the Granteesin
enforcing this Conservation Restriction or in taking reasonable measures to remedy, abate or correct any violation thereof. In the event of a dispute over the boundaries of the Conservation
Restriction, Grantor shall pay for a survey by a Massachusetts licensed professional land surveyor and to have the boundaries permanently marked.
Coordination between Primary and Secondary Grantee.Whenever there is a question of whether there is a violation of this Conservation Restriction, or how to proceed in addressing the
violation, the Primary Grantee shall consult with the Secondary Grantee. The Primary Grantee shall then determine whether there is a violation and how to proceed in addressing the violation.
The Primary Grantee’s decision shall in all cases be the final and controlling decision binding on both Grantees. In the event that no responseis received from the Secondary Grantee
within thirty (30) days, the Primary Grantee shall notify Grantor and proceed as provided in Paragraph IV.B.2.
Non-Waiver
Enforcement of the terms of this Conservation Restriction shall be at the sole discretion of the Grantees. Any election by the Grantees as to the manner and timing of its right to enforce
this Conservation Restriction or otherwise exercise its rights hereunder shall not be deemed or construed to be a waiver of such rights.
Disclaimer of Liability
By acceptance of this Conservation Restriction, the Grantees do not undertake any liability or obligation relating to the condition of the Premises pertaining to compliance with and
including, but not limited to, hazardous materials, zoning, environmental laws and regulations, or acts not caused by the Grantees or their agents.
Acts Beyond the Grantor’s Control
Nothing contained in this Conservation Restriction shall be construed to entitle the Grantees to bring any actions against the Grantor for any injury to or change in the Premises resulting
from natural causes beyond the Grantor’s control, including but not limited to fire, flood, weather, climate-related impacts, and earth movement, or from any prudent action taken by
the Grantor under emergency conditions to prevent, abate, or mitigate significant injury to the Premises resulting from such causes. In the event of any such occurrence, the Grantor
and Grantees will cooperate in the restoration of the Premises, if desirable and feasible.
PUBLIC ACCESS
Subject to the provisions of this Conservation Restriction, theGrantor hereby grants access to the Premises to the general public and agrees to take no action to prohibit or discourage
access to and use of the Premises by the general public, but only for daytime use and only as described in Paragraph III.B.9provided that such agreement by Grantor is subject to the
Grantor’s reserved right to establish reasonable rules, regulations, and restrictions on such permitted recreational use by the general public for the protection of the Purposes and
Conservation Values. Grantor has the right to control, limit, or prohibit by posting and other reasonable means activities or uses of the Premises not authorized in ParagraphIII.B.9.
The Grantees may require the Grantor to post the Premises against any use by the public that results in material impairment of the Conservation Values. This grant of public access to
the Premises is solely for the purposes described in Section 17C of Chapter 21 of the Massachusetts General Laws and the Grantor and Grantees hereto express their intent to benefit from
exculpation from liability to the extent provided in such section.
TERMINATION/RELEASE/EXTINGUISHMENT
Procedure
If circumstances arise in the future that render the Purposes impossible to accomplish, this Conservation Restriction can only be terminated, released, or extinguished, whether in whole
or in part, by a court of competent jurisdiction under applicable law after review and approval by the Secretary of Energy and Environmental Affairs of the Commonwealth of Massachusetts,
or successor official (“Secretary”), and any other approvals as may be required by Section 32 of Chapter 184 of the Massachusetts General Laws.
Grantor’s and Grantees’ Right to Recover Proceeds
If any change in conditions ever gives rise to termination, release, or extinguishment of thisConservation Restriction under applicable law, then Primary Grantee, on a subsequent sale,
exchange, or involuntary conversion of the Premises, shall be entitled to a portion of the proceeds in accordance with ParagraphVI.C, subject, however, to any applicable law which expressly
provides for a different disposition of the proceeds,and after complying with the terms of any gift, grant, or funding requirements.The Primary Grantee shall use its share of any proceeds
in a manner consistent with the Purposes or the protection of the Conservation Values.The Secondary Grantee shall not share in any recovered proceeds.
Grantee’s Receipt of Property Right
Grantor and Grantees agree that the conveyance of this Conservation Restriction gives rise to a real property right, immediately vested in the Grantee, with a fair market value that
is at least equal to the proportionate value that this Conservation Restriction, determined at the time of the conveyance, bears to the value of the unrestricted Premises. The proportionate
value of the Primary Grantee’s property right as of the Effective Date (see Paragraph XII) was determined to be 24%. Such proportionate value of the Primary Grantee’s property right
shall remain constant.
Cooperation Regarding Public Action
Whenever all or any part of the Premises or any interest therein is taken by public authority under power of eminent domain or other act of public authority, then the Grantor and the
Grantees shall cooperate in recovering the full value of all direct and consequential damages resulting from such action. All related expenses incurred by the Grantor and the Grantees
shall first be paid out of any recovered proceeds, and the remaining proceeds shall be distributed between the Grantor and Grantees in accordance with Paragraph VI.B and Paragraph VI.C.If
a less than fee interest is taken, the proceeds shall be equitably allocated according to the nature of the interest taken. The Grantees shall use its share of any proceeds in a manner
consistent with the Purposes or the protection of the Conservation Values.
DURATION andASSIGNABILITY
Running of the Burden
The burdens of this Conservation Restriction shall run with the Premises in perpetuity and shall be enforceable against the Grantor and the successors and assigns of the Grantor holding
any interest in the Premises.
Execution of Instruments
The Granteesareauthorized to record or file any notices or instruments appropriate to assuring the perpetual enforceability of this Conservation Restriction. The Grantor, on behalf of
itself and its successors and assigns, appoints the Granteesits attorney-in-fact to execute, acknowledge and deliver any such instruments on its behalf. Without limiting the foregoing,
the Grantor and its successors and assigns agree themselves to execute any such instruments upon request.
Running of the Benefit
The benefits of this Conservation Restriction shall run to the Grantees, shall be in gross and shall not be assignable by the Grantees, except when all of the following conditions are
met:
the Grantees requires that the Purposes continue to be carried out;
the assignee is not an owner of the fee in the Premises;
the assignee, at the time of the assignment, qualifies under and 26.U.S.C. 170(h), and applicable regulations thereunder, if applicable, and is eligible to receive this Conservation
Restriction under Section 32 of Chapter 184 of the Massachusetts General Laws; and
theassignment complies with Article 97 of the Amendments to the Constitution of the Commonwealth of Massachusetts, if applicable.
SUBSEQUENT TRANSFERS
Procedure for Transfer
The Grantor agrees to incorporate by reference the terms of this Conservation Restriction in any deed or other legal instrument which grants any interest in all or a portion of the Premises,
including a leasehold interest and to notify the Granteesnot less thantwenty (20) days prior to the effective date of such transfer. Any transfers shall receive prior approval by Grantees
to assure that the Premises is transferred to a qualified conservation organization.Failure to do any of the above shall not impair the validity or enforceability of this Conservation
Restriction. If the Grantor fails to reference the terms of this Conservation Restriction in any deed or other legal instrument which grants any interest in all or a portion of the Premises,
then the Grantees may record it in the Barnstable County Registry of Deeds and theBarnstable Land Registry District,and at the Grantor’s expense, a notice of this Conservation Restriction.
Any transfer will comply with Article 97 of the Amendments to the Constitution of the Commonwealth of Massachusetts, if applicable.
Grantor’s Liability
The Grantor shall not be liable for violations occurring after their ownership should they convey ownership of the property. Liability for any acts or omissions occurring prior to any
transfer and liability for any transfer if in violation of this Conservation Restriction shall survive the transfer. Any new owner shall cooperate in the restoration of the Premises
or removal of violations caused by prior owner(s) and may be held responsible for any continuing violations.
ESTOPPEL CERTIFICATES
Upon request by the Grantor, the Grantees shall, within sixty(60)days execute and deliver to the Grantor any document, including an estoppel certificate, which certifies the Grantor’s
compliance or non-compliance with any obligation of the Grantor contained in this Conservation Restriction.NON MERGER
The parties intend that any future acquisition of the Premises shall not result in a merger of the Conservation Restriction into the fee. The Grantor agrees that it will not grant, and
the Grantees agrees that it will not take title, to any part of the Premises without having first assigned this Conservation Restriction following the terms set forth in Paragraph VII.Cto
ensure that merger does not occur and that this Conservation Restriction continues to be enforceable by a non-fee owner.
AMENDMENT
Limitations on Amendment
Grantor and Grantees may amend this Conservation Restrictiononly tocorrect an error or oversight, clarify an ambiguity,maintain or enhance the overall protection of the Conservation
Values, or add real property to the Premises, provided that no amendment shall:
affect this Conservation Restriction’s perpetual duration;
be inconsistent with or materially impair the Purposes;
affect the qualification of this Conservation Restriction as a “qualified conservation contribution” or “interest in land”under any applicable laws, including 26 U.S.C. Section 170(h),
and related regulations;
affect the status of Grantees as “qualified organizations” or “eligible donees”under any applicable laws, including 26 U.S.C. Section170(h) and related regulations, and Sections 31,
32, and 33 of Chapter 184 of the Massachusetts General Laws; or
create an impermissible private benefit or private inurement in violation of federal tax law, as determined by an appraisal, conducted by an appraiser selected by the Grantees, of the
economic impact of the proposed amendment; or
alter or remove the provisions described in Paragraph VI(Termination/Release/Extinguishment); or
cause the provisions of this Paragraph XI to be less restrictive; or
cause the provisions described in Paragraph VII.C (Running of the Benefit) to be less restrictive.
Amendment Approvals and Recording
No amendment shall be effective unless documented in a notarized writing executed by Grantees and Grantor, approved by the Town of Barnstable andby the Secretary in the public interest
pursuant to Section 32 of Chapter 184 of the Massachusetts General Laws, and recorded in the Barnstable County Registry of Deeds and the Barnstable Land Registry District. Any amendment
shall be consistent with the purposes of this Restriction, shall not affect its perpetual duration, shall be approved by the Secretary of Energy and Environmental Affairs and, if applicable,
shall comply with the provisions of Article 97 of the Amendments to the Massachusetts Constitution, and any gifts, grants or funding requirements. EFFECTIVE DATE
This Conservation Restriction shall be effective when the Grantor and the Grantees have executed it, the administrative approvals required by Section 32 of Chapter 184 of the Massachusetts
General Laws have been obtained, and it has been recordedin theBarnstable County Registry of Deeds and the Barnstable Land Registry District.
NOTICES
Any notice, demand, request, consent, approval or communication that either party desires or is required to give to the other shall be in writing and either served personally or sent
by first class mail, postage pre-paid, addressed as follows:To Grantor:Orenda Wildlife Land Trust, Inc.P.O. Box 669West Barnstable MA 02668To Primary Grantee:Town of Barnstable367 Main
StreetHyannis MA 02601To Secondary Grantee:The Compact of Cape Cod Conservation Trusts, Inc.P.O. Box 443Barnstable MA 02630
or to such other address as any of the above parties shall designate from time to time by written notice to the other or, if notice is returned to sender, to an address that is reasonably
ascertainable by the parties.
GENERAL PROVISIONS
Controlling Law
The interpretation and performance of this Conservation Restriction shall be governed by the laws of the Commonwealth of Massachusetts.
Liberal Construction
Any general rule of construction to the contrary notwithstanding, this Conservation Restriction shall be liberally construed in order to effect the Purposes and the policy and purposes
of Sections 31, 32, and 33 of Chapter 184 of the Massachusetts General Laws. If any provision in this instrument is found to be ambiguous, any interpretation consistent with the Purposes
that would render the provision valid shall be favored over any interpretation that would render it invalid.
Severability
If any provision of this Conservation Restriction or the application thereof to any person or circumstance is found to be invalid, the remainder of the provisions of this Conservation
Restriction shall not be affected thereby.
Entire Agreement
This instrument sets forth the entire agreement of the Grantor and Granteeswith respect to this Conservation Restriction and supersedes all prior discussions, negotiations, understandings,
or agreements relating to the Conservation Restriction, all of which are merged herein.
BASELINE DOCUMENTATION REPORT
The Conservation Values, as well as the natural features, current uses of, and existing improvements on the Premises, such as, but not limited to, trails, woods roads, structures, meadows
or other cleared areas, agricultural areas, and scenic views, as applicable, are described in a Baseline Documentation Report (“Baseline Report”) title Baseline Report for Smiths Creek
Conservation Restriction, and dated 2025prepared by Secondary Grantee with the cooperation of the Grantor, consisting of maps, photographs, and other documents and on file with the Grantee
and included by reference herein. The Baseline Report (i) is acknowledged by Grantor and Grantees to be a complete and accurate representation of the condition and values of the Premises
as of the date of this Conservation Restriction, (ii) is intended to fully comply with applicable Treasury Regulations, (iii) is intended to serve as an objective information baseline
for subsequent monitoring of compliance with the terms of this Conservation Restriction as described herein, and (iv) may be supplemented as conditions on the Premise change as allowed
over time. Notwithstanding the foregoing, the parties may utilize any evidence of the condition of the Premises at the time of this grant in addition to the Baseline Report.
MISCELLANEOUS
Pre-existing Public Rights
Approval of this Conservation Restriction pursuant to Section 32 of Chapter 184 of the Massachusetts General Laws by any municipal officials and by the Secretary, is not to be construed
as representing the existence or non-existence of any pre-existing rights of the public, if any, in and to the Premises, and any such pre-existing rights of the public, if any, are not
affected by the granting of this Conservation Restriction.No Surety Interest
The Grantor attests that there is no mortgage, promissory note, loan, lien, equity credit line, refinance assignment of mortgage, lease, financing statement or any other agreement which
gives rise to a surety interest affecting the Premises.
Executory Limitation
If either Grantee shall cease to exist or to be qualified to hold conservation restrictions pursuant to Section 32 of Chapter 184 of the Massachusetts General Laws, or to be qualified
organization under 26 U.S.C. 170(h), and applicable regulations thereunder, if applicable,and a prior assignment is not made pursuant to Paragraph VII, then that Grantee’s rights and
obligations under this Conservation Restriction shall run to the other Grantee.
Prior Encumbrances
This Conservation Restriction shall be in addition to and not in substitution of any other restrictions or easements of record affecting the Premises.
The following signature pages are included in this Grant:
Grantor – Orenda Wildlife Land Trust, Inc.
Grantee Acceptance – Town of Barnstable Town Manager
Secondary Grantee Acceptance – The Compact of Cape Cod Conservation Trusts, Inc.
Approval – Town of Barnstable Town Council
Approval of the Secretary of Energy and Environmental Affairs of the Commonwealth of Massachusetts.
The following exhibits are attached and incorporated herein:
Exhibit A: Legal Description of Premises
Exhibit B: Reduced Copies of Recorded/Registered Plans of Premises
Exhibit C: Town Council Order
WITNESS my hand and seal this ____day of ___________________, 2025.
By:
Daniel J. Morast
Its President, duly authorized
COMMONWEALTH OF MASSACHUSETTS
Barnstable, ss:
On this day of ,2025, before me, the undersigned notary public, personally appeared Daniel Morast, President, Orenda Wildlife Land Trust, Inc., and proved to me through satisfactory
evidence of identification which waspersonal knowledgeto be the person whose name is signed on the proceeding or attached document, and acknowledged to me that he signed it voluntarily
for its stated purpose on behalf of the corporation. ______________________________Mark H. Robinson, Notary PublicMy Commission Expires: 8 July 2027
CERTIFICATE OF VOTE
I, Caitlin Wojkowski duly elected Clerk of the Orenda Wildlife Land Trust, Inc., hereby certify that at a meeting of the Board of Directors duly called on the day of, 2025, at which
meeting, acting throughout upon motion duly made and seconded, a quorum being present, it was unanimously
VOTED: that Daniel Morast, President of Orenda Wildlife Land Trust, Inc., be and hereby is authorized in the name of Orenda Wildlife Land Trust, Inc. to grant a Conservation Restriction
to the Town of Barnstable and The Compact of Cape Cod Conservation Trusts, Inc. on its property at, 564 and 0 Main Street (Route 6A), (West) BarnstableMA, this execution thereof shall
be sufficient evidence of the Board of Directors’ approval.
I further certify that Daniel Morast is the duly elected President of Orenda Wildlife Land Trust, Inc., and that I am the duly elected Clerk and that said vote is still in full force
and effect.A true copy,
Attest:Caitlin Wojkowski, ClerkOrenda Wildlife Land Trust, Inc.
Date: , 2025
ACCEPTANCE OF GRANT
The foregoing Conservation Restriction from Orenda Wildlife Land Trust, Inc. was accepted by The Compact of Cape Cod Conservation Trusts, Inc., this ____ day of ________________, 2025.By:
_____________________________Leonard W. JohnsonIts: President, duly authorized
By: ___________________________
Henry Lind
Its: Treasurer, duly authorized
COMMONWEALTH OF MASSACHUSETTS
Barnstable, ss:
On this day of , 2025, before me, the undersigned notary public, personally appeared Leonard W. Johnson, President of The Compact of Cape Cod Conservation Trusts, Inc., and Henry Lind,
Treasurer of The Compact of Cape Cod Conservation Trusts, Inc., and proved to me through satisfactory evidence of identification which was personal knowledge to be the persons whose
names are signed on the proceeding or attached document, and acknowledged to me that they signed it voluntarily for its stated purpose on behalf of the corporation. ______________________________Mark
H. Robinson, Notary PublicMy Commission Expires: 8 July 2027
APPROVAL OF TOWN MANAGER
I, Mark S. Ells, as Town Manager of the Town of Barnstable, Massachusetts, authorized by a vote of the Town Cuncil at a duly-noticed meeting held on ________________________ on agenda
item ______________, a copy of the Town Council Order being attached hereto as Exhibit C, hereby approve in the public interestpursuant to Section 32 of Chapter 184 of the MassachusettsGeneralLaws
and accept the foregoing Conservation Restrictionfrom Orenda Wildlife Trust, Inc. to the Town of Barnstable and The Compact of Cape Cod Conservation Trusts, Inc.
TOWN OF BARNSTABLE
TOWN MANAGER:______________________Mark S. Ells
Barnstable, ss
On the day of , 2025, before me, the undersigned notary public, personally appeared Mark S. Ells, the person whose name is signed on the document and proved to me through satisfactory
evidence of identification, which was , and who being by me duly sworn did say that he is the Town Manager of the Town of Barnstable; that he is duly authorized to act on behalf the
Town of Barnstable and he acknowledged the foregoing instrument to be his free act and deed.
______________________
Notary Public
My Commission Expires
APPROVAL OF THE TOWN OF BARNSTABLE
TOWN COUNCIL
At a public meeting duly held on , on agenda item ___________the Town Council of the Town of Barnstable, Massachusetts, voted to approve the foregoing Conservation Restriction from Orenda
Wildlife Land Trust, Inc.to the Town of Barnstable and The Compact of Cape Cod Conservation Trusts, Inc.in the public interest pursuanttoSection 32 of Chapter 184 of the MassachusettsGeneralLawsand
hereby certifies approvalof the foregoing Conservation Restriction.
.
TOWN COUNCIL PRESIDENT:_
_____________________
Felicia R. Penn
COMMONWEALTH OF MASSACHUSETTS
Barnstable,ss
Onthe dayof ,2025, before me, the undersigned notary public, personally appearedFelicia R. Penn, the person whose name is signed on the document and proved to me through satisfactory
evidence of identification, which was, and who being by me duly sworn did say thatshe is the President of the Town Council of the Town of Barnstable; thatshe is duly authorized to act
on behalf the Town Council; andshe acknowledged the foregoing instrument to be the free act and deed of Town of Barnstable Town Council.
NotaryPublic
MyCommissionExpires:
APPROVAL OFSECRETARY OF ENERGY ANDENVIRONMENTAL AFFAIRS OF THE COMMONWEALTH OF MASSACHUSETTS
The undersigned, Secretary of Energy and Environmental Affairs of the Commonwealth of Massachusetts, hereby approves the foregoing Conservation Restriction from Orenda Wildlife Land
Trust, Inc.to the Town of Barnstable and The Compact of Cape Cod Conservation Trusts, Inc. in the public interest pursuant to Section 32 of Chapter 184 of the Massachusetts General Laws.
Dated: ________________, 2025Rebecca L. Tepper
Secretary of Energy and Environmental Affairs
COMMONWEALTH OF MASSACHUSETTS
SUFFOLK, ss:
On this day of , 2025, before me, the undersigned notary public, personally appeared Rebecca L. Tepper, and proved to me through satisfactory evidence of identification which was ______________________________
to be the person whose name is signed on the proceeding or attached document, and acknowledged to me that she signed it voluntarily for its stated purpose. ______________________________Notary
PublicMy Commission Expires:
EXHIBIT A
Description of the Premises
The Premises is comprised of two adjoining parcels on the north side of State Route 6A in the village of West Barnstable, more particularly bounded and described as follows
TRACT ONE: The vacant land in the Town of Barnstable, Massachusetts, containing 3.96 acres, more or less, shown as Lot “2”on a plan of land entitled,“Plan of Land in West Barnstable,
Mass. Belonging to the Estate of Miriam H. Rice”, dated August18, 1961, by Nelson Bearse & Richard Law, Surveyors, Centerville, Mass, recorded at the Barnstable County Registry of Deeds
at Plan Book 166, Page 141.
Address: 564 Main Street, (West) Barnstable, MA
Assessors Map: 133 Parcel 011
and
TRACT TWO:The vacant registered land in the Town of Barnstable, Massachusetts, containing 1.5 acres, more or less, shown as Lot “2”on a plan of land entitled,“Subdivision Plan of Land
in Barnstable – Subdivision of Land Shown on Plan 38226-Afiled with Cert. of Title No. 64242, Registry District of Barnstable County” datedApril 4, 1997, by Down Cape Engineering, Inc.,
Yarmouthport, Mass, filedwiththe Barnstable County Land Court Registry District at Land Court Plan 38226-B.
Address: 0 Main Street, (West) Barnstable, MA
Assessors Map: 157 Parcel 004 Lot 002
EXHIBIT B-1
Plan of Premises
TRACT ONE
For official full-size plan see Barnstable County Registry of Deeds Plan Book 166, Page 141
EXHIBIT B-2
Plan of Premises
TRACT TWO
For official full-size plan see Barnstable Registry District Plan 38226-B
EXHIBIT C
Town Council Order
Pending
