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HomeMy WebLinkAboutCR 17435 - Yarmouth Approved for Local Signatures 11.6.24Simpkins Bog II Conservation Restriction, Yarmouth, MA 1 GRANTOR: Native Land Conservancy, Inc. GRANTEE: Trustees of the Yarmouth Conservation Trust ADDRESS OF PREMISES: 0 Route 6A, Yarmouth, Massachusetts 02675 FOR GRANTOR’S TITLE SEE: Barnstable County Registry of Deeds at Book 36404, Page 192. FOR GRANTOR’S PLAN SEE: Barnstable County Registry of Deeds at Plan Book 687, Page 39. GRANT OF CONSERVATION RESTRICTION I. STATEMENT OF GRANT NATIVE LAND CONSERVANCY, INC., a Massachusetts non-profit corporation with a street address of 2B Center Street, Mashpee, MA 02649 and a mailing address of P.O. Box 974, Mashpee, Massachusetts 02649, being the sole owner of the Premises as defined herein, for its successors and assigns (“Grantor”), acting pursuant to Sections 31, 32, and 33 of Chapter 184 of the Massachusetts General Laws, grant, with QUITCLAIM COVENANTS, to SHARON K. DONEGAN, DONALD F. HENDERSON, ELIZABETH G. MANNING, RICHARD F. MARTIN, JOHN REEVE, AND CHRISTINE MARZIGLIANO, as TRUSTEES of and acting as such on behalf of the YARMOUTH CONSERVATION TRUST, established under a Deed of Trust dated March 3, 1986, recorded with the Barnstable County Registry of Deeds in Book 5031, Page 44, as amended, and with the Barnstable Registry District of the Land Court as Document No. 633,110 on Certificate No. 180006, with a mailing address at P.O. Box 376, Yarmouth Port, Massachusetts, 02675, their permitted successors and assigns (“Grantee”), for nominal consideration, IN PERPETUITY AND EXCLUSIVELY FOR CONSERVATION PURPOSES, the following Conservation Restriction on land located in the Town of Yarmouth, County of Barnstable, Commonwealth of Massachusetts, containing the entirety of a 9.120-acre parcel of land (“Premises”), which Premises is more particularly described in Exhibit A and shown in the attached reduced copy of a survey plan in Exhibit B, both of which are incorporated herein and attached hereto. Simpkins Bog II Conservation Restriction, Yarmouth, MA 2 II. PURPOSES: This Conservation Restriction is defined in and authorized by Sections 31, 32, and 33 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 perpetuity in its natural, scenic, or open condition, and available for conservation, passive outdoor recreational use, and cultural and ceremonial use and to prevent any use or change that would materially impair the Conservation Values (as defined below). The fee interest in the Premises was acquired utilizing, in part, the Conversation Land Tax Credit Program (CLTC# 0597) pursuant to Section 6(p) of Chapter 62 and Section 38AA of Chapter 63 of the Massachusetts General Laws. The Conservation Values protected by this Conservation Restriction include the following: • Open Space. The Premises contributes to the protection of the scenic and natural character of Route 6A (Main Street) in Yarmouth Port, along the historic Old King’s Highway Regional Historic District, and is north of and adjacent to approximately 30 acres of Town Water Department Land. Just across Route 6A (Main Street) is more than 200 acres of open space held in a conservation restriction by the Bass River Rod and Gun Club. The Premises was part of a cranberry farm, active until 1959 and contains what is known as “Simpkins Bog.” The bog area is overgrown with wetland plants, and the surrounding natural habitat is mostly native deciduous and evergreen trees. The Premises abuts 10.816 acres of conservation land to the west, acquired by the Native Land Conservancy in 2020, with a conservation restriction held by the Yarmouth Conservation Trust. The protection of the Premises will enhance the open-space value of these and nearby lands. • Floodplain. The majority (8 acres±) of the Premises lies within the FEMA 100-year Special Flood Hazard Area with Base Flood Elevation of 10 feet along the Whites Brook flood plain. 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 (obstructions can cause the channelization of flood waters and storm-wave overwash and an increase in the velocity and volume of flow to adjacent or landward areas), 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 approximately 85% of Farmland of Unique Importance and approximately 15% of Forest Land of Local Importance as identified by the USDA Natural Resources Conservation Service. 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. Simpkins Bog II Conservation Restriction, Yarmouth, MA 3 • Public Access. Public access to the Premises will be allowed for passive outdoor recreation, education, cultural practices, and nature study. • Biodiversity. The entire Premises is designated as BioMap Critical Natural Landscape Coastal Adaptation Area, as defined by the Massachusetts Natural Heritage and Endangered Species Program, found to have high potential to support inland migration of salt marsh and other coastal habitats in the face of climate change over the coming century. 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. BioMap is also designed to include the habitats and species of conservation concern identified in the State Wildlife Action Plan. • Mass Audubon Priority Parcels. The Mass Audubon Mapping and Priority Parcels for Resilience tool (MAPPR) designates the entirety of the Premises as a Medium Priority Parcel for habitat protection. MAPPR allows for the identification of parcels of land that are the highest priorities for protection based on habitat quality, climate change resilience, water resource protection, parcel size and adjacency to existing protected parcels. Protection of the Premises will contribute to the resilience of this and nearby lands. • Water Quality. Protection of the Premises can help maintain water quality within the Whites Brook watershed, flowing into and impacting water quality in Chase Garden Creek and Cape Cod Bay. Protection of the Premises can help maintain water quality for public drinking water; • Wetlands. The wooded/shrub swamp (red maple and highbush blueberry) that makes up the majority of 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). • Indigenous Cultural Landscape. The Premises is identified by the Massachusetts Commission on Indian Affairs, as an Indigenous Cultural Landscape that is part of the Wampanoag ancestral homelands with attributes relevant to the intrinsic values of contemporary Wampanoag Indigenous community within the Commonwealth of Massachusetts. The Premises is located within the general Hockanom area of (now) Yarmouthport, a major pre-colonial settlement of the Wampanoag.. • Historic and Archaeological Resources. The General Court of Massachusetts established the Old Kings Highway Regional Historic District on the northern shore of Barnstable County through Chapter 740 of the Acts of 1973, the area of which follows Main Street in Yarmouth Port, along state Route 6A. The Premises falls entirely within this historical district. In addition, the Premises contains wetlands and abandoned farmland that may contain artifacts of human history. Conservation and appropriate management of the Simpkins Bog II Conservation Restriction, Yarmouth, MA 4 Premises has an important public benefit by preserving historic and archeological resources within the Premises. • Water Supply. Approximately 55% of the Premises lies within the Zone II Wellhead Protection Area, as identified by the MA Department of Environmental Protection, the protection of which is critical to maintaining the public drinking water supply. The Town of Yarmouth Water Department operates a public water supply well on property adjoining the Premises. • Consistency with the Town of Yarmouth's 2015 Open Space and Recreation Plan (updated December 2018). Protection of the Premises will further the Town of Yarmouth's documented goals regarding conservation of open space for conserving public water supplies, and natural resource protection. The Plan specifies that: o "Land acquisition efforts to increase open space, and proper management of conservation areas, ensuring the protection of environmentally sensitive· areas (wetlands and groundwater resources) and promoting stewardship of these areas have been consistently identified as high priorities. (Section 7 .1.1, p. 73); and o "Fragmentation of wildlife and plant habitat should be minimized by the establishment of greenways and wildlife corridors of sufficient width to protect species that inhabit the interior areas, as well as by the protection of large unfragmented areas ... " (Section 7.1.3, pp. 75)." o “There are opportunities to augment the value of existing conserved lands by increasing the size of the conservation area. Undeveloped properties adjacent to these properties should be evaluated for acquisition or other means of protection from full development.” (Section 7.1.6 pp. 75) In addition, the Plan articulated goals to: o "Expand the amount of open space and conservation land. a) Identify and preserve land for natural resource protection, drinking water protection, passive recreation, quality of life and aesthetics (Section 8, No. 2, pp. 85); and o "Protect and improve environmental resources, water quality and open space. (Section 8, No. 3, pp. 85). Each of these overarching policies and goals will be advanced in implementing this Conservation Restriction. • 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 ("RPP"), amended in 1996, 2002, 2009, 2012, 2018, and 2021 which provided, inter alia (references are to the 2018 RPP amended March 2021): Simpkins Bog II Conservation Restriction, Yarmouth, MA 5 o “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” o "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." o "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." o “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 Wetland Resources Goal will be served by protecting shrub swamp 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 important BioMap Critical Natural Landscape. The Open Space Goal will be served by expanding existing protected open space at the Simpkins Bog Conservation Area. The Coastal Resiliency Goal will be met by preventing development in the floodplain, and protecting an area that has been found to have high potential to support inland migration of salt marsh and other coastal habitats in the face of climate change over the coming century. • Consistency with Clearly Delineated Federal Conservation Policy. Protection of the Premises meets the definition of "conservation purposes" as defined in 26 CFR l.170A-14(d)(l), because its conservation would: protect the land for outdoor recreation by the general public; reserve the land for education regarding the natural world; protect wildlife and aquatic habitats; contribute to the preservation of open space because it is proximate to several other parcels already conserved, and protect ground and surface water quality. III. PROHIBITED and PERMITTED ACTS AND USES A. Prohibited Acts and Uses The Grantor will not perform or allow others to perform the following acts and uses which are prohibited on, above, and below the Premises: Simpkins Bog II Conservation Restriction, Yarmouth, MA 6 1. 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, sign, fence, gate, billboard or other advertising, antenna, utilities or other structures, utility pole, tower, solar panel, wind turbine, solar array, conduit, line, septic or wastewater disposal system, storage tank, or dam; 2. Extractive Activities/Uses. Mining, excavating, dredging, withdrawing, or removing soil, loam, peat, gravel, sand, rock, surface water, ground water, or other mineral substance or natural deposit, or otherwise altering the topography of the Premises; 3. 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; 4. Adverse Impacts to Vegetation. Cutting, removing, or destroying trees, shrubs, grasses or other vegetation; 5. 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; 6. Introduction of Invasive Species. Planting or introducing any species identified as invasive by the Massachusetts Invasive 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 Grantee; 7. 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; 8. 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; 9. Use of Premises for Developing Other Land. Using the Premises towards building or development requirements on this or any other parcel; 10. Adverse Impacts to Stone Walls, Boundary Markers. Disrupting, removing, or destroying stone walls, granite fence posts, or any other boundary markers; 11. Residential or Industrial Uses. Using the Premises for residential or industrial purposes; Simpkins Bog II Conservation Restriction, Yarmouth, MA 7 12. Inconsistent Uses. Using the Premises for commercial purposes that are inconsistent with the Purposes or that would materially impair the Conservation Values, or for any other uses or activities that are inconsistent with the Purposes or that would materially impair the Conservation Values. B. 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. 1. 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.); 2. Non-native, Nuisance, or Invasive species. 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; 3. Composting. Stockpiling and composting stumps, trees, brush, limbs, and similar biodegradable materials originating on the Premises, provided that no stockpiling or composting shall take place within 100 feet of any wetland; 4. Natural Habitat and Ecosystem Improvement. With prior written approval of the Grantee, 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; 5. Indigenous Cultural Practices. The right of the Grantor and its invitees to: a. Conduct cultural and ceremonial practices that are consistent with and do not impair the Conservation Values. Cultural practices are defined, for the purposes of this Conservation Restriction, as including traditional spiritual ceremonies, seasonal celebrations, offerings, and cultural, educational, and interpretive programming; and b. Harvest plant-life for traditional cultural practices, using methods that are consistent with and do not impair the Conservation Values, ensure sustainable populations of the harvested species within the Premises, including regrowth and replanting; 6. Trails. Maintaining and constructing trails as follows: Simpkins Bog II Conservation Restriction, Yarmouth, MA 8 a. Trail Maintenance. Conducting routine maintenance of trails, which may include widening trail corridors up to eight (8) feet in width overall, with a treadway up to five (5) feet in width. b. New Trails. With prior written approval of the Grantee, constructing new trails or relocating existing trails, provided that any construction or relocation results in trails that conform with the width limitations above. c. Trail Features. With prior written approval of the Grantee, constructing bog bridging, boardwalks, footbridges, railings, steps, culverts, benching, cribbing, contouring, or other such features, together with the use of motorized equipment to construct such features; 7. Resting Benches. The Grantor reserves the right to install several resting benches for enjoyment by the public, provided that such installation causes no more than minimal disturbance on the Premises and does not negatively impact its Conservation Values; 8. 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 Grantee's interest in the Premises, boundary and trail markings, any gift, grant, or other applicable source of support for the conservation of the Premises; 9. Fences With the approval of the Grantee, the right to erect and maintain open-faced (i.e. sight-pervious) fences, such as wooden split rails, for property boundary delineation, safety reasons, and trail demarcation, so long as the dimensions and design of said fences do not impede free wildlife passage; 10. Motorized Vehicles. Using motorized vehicles by persons with mobility impairments and as otherwise permitted herein to carry out land management activities; 11. Outdoor Passive Recreational and Educational Activities. Hiking, cross-country skiing, snowshoeing, nature observation, nature and educational walks and outings, outdoor educational activities, and other non-motorized outdoor recreational and educational activities that do not conflict with the Conservation Values and that are permitted by law. C. 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 to soil material, grade, and vegetated ground cover. D. 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 Simpkins Bog II Conservation Restriction, Yarmouth, MA 9 Constitution of the Commonwealth of Massachusetts. The inclusion of any Permitted Acts and Uses requiring a permit, license or other approval from a public agency does not imply that the Grantee or the Commonwealth takes any position whether such permit, license, or other approval should be issued. E. Notice and Approval 1. Notifying Grantee. Whenever notice to or approval by Grantee is required, Grantor shall notify or request approval from Grantee, 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: a. Describe the nature, scope, design, location, timetable and any other material aspect of the proposed activity; b. 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; c. Identify all permits, licenses, or approvals required for the proposed activity, and the status of any such permits, licenses, or approvals; and d. Describe any other material aspect of the proposed activity in sufficient detail to permit the Grantee to make an informed judgment as to its consistency with the Purposes and Conservation Values. 2. Grantee Review. Where Grantee’s approval is required, Grantee shall grant or withhold approval in writing within sixty (60) days of receipt 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. 3. Resubmittal. Grantee’s 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. IV. INSPECTION AND ENFORCEMENT A. Entry onto the Premises The Grantor hereby grants to the Grantee, and its duly 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. B. Legal and Injunctive Relief Simpkins Bog II Conservation Restriction, Yarmouth, MA 10 1. 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 relief and relief requiring restoration of the Premises to its condition prior to the time of the injury (it being agreed that the Grantee will have no adequate remedy at law in 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 Grantee for the enforcement of this Conservation Restriction. 2. Notice and Cure. In the event the Grantee determines that a violation of this Conservation Restriction has occurred and intends to exercise any of the rights described herein, the Grantee 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 Grantee may take further action, including instituting legal proceedings and entering the Premises to take reasonable measures to remedy, abate or correct such violation, without further notice. Provided, however, that this requirement of deferment of action for thirty (30) days applies only if Grantor immediately ceases the violation and Grantee determines that there is no ongoing violation. In instances where a violation may also constitute a violation of local, state, or federal law, the Grantee may notify the proper authorities of such violation. 3. Reimbursement of Costs and Expenses of Enforcement. Grantor covenants and agrees to reimburse to Grantee all reasonable costs and expenses (including counsel fees) incurred by the Grantee in 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. C. Non-Waiver Enforcement of the terms of this Conservation Restriction shall be at the sole discretion of Grantee. Any election by the Grantee 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. D. Disclaimer of Liability By acceptance of this Conservation Restriction, the Grantee does 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 Grantee or its agents. Simpkins Bog II Conservation Restriction, Yarmouth, MA 11 E. Acts Beyond the Grantor’s Control Nothing contained in this Conservation Restriction shall be construed to entitle the Grantee 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 Grantee will cooperate in the restoration of the Premises, if desirable and feasible. V. PUBLIC ACCESS Subject to the provisions of this Conservation Restriction, the Grantor 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.11 provided 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 Paragraph III.B.11. The Grantee 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 Grantee hereto express their intent to benefit from exculpation from liability to the extent provided in such section. VI. TERMINATION/RELEASE/EXTINGUISHMENT A. 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. B. Grantor’s and Grantee’s Right to Recover Proceeds If any change in conditions ever gives rise to termination, release, or extinguishment of this Conservation Restriction under applicable law, then Grantee, on a subsequent sale, exchange, or involuntary conversion of the Premises, shall be entitled to a portion of the proceeds in accordance with Paragraph VI.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 Grantee shall use its share of any proceeds in a manner consistent with the Purposes or the protection of the Conservation Values. Simpkins Bog II Conservation Restriction, Yarmouth, MA 12 C. Grantee’s Receipt of Property Right Grantor and Grantee 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 Grantee’s property right as of the Effective Date (See Paragraph XII.) was determined to be 5%. Such proportionate value of the Grantee’s property right shall remain constant. D. 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 Grantee 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 Grantee shall first be paid out of any recovered proceeds, and the remaining proceeds shall be distributed between the Grantor and Grantee 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 Grantee shall use its share of any proceeds in a manner consistent with the Purposes or the protection of the Conservation Values. VII. DURATION and ASSIGNABILITY A. 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. B. Execution of Instruments The Grantee is authorized 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 Grantee its 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. C. Running of the Benefit The benefits of this Conservation Restriction shall run to the Grantee, shall be in gross and shall not be assignable by the Grantee, except when all of the following conditions are met: 1. the Grantee requires that the Purposes continue to be carried out; 2. the assignee is not an owner of the fee in the Premises; 3. the assignee, at the time of the assignment, qualifies under 26 U.S.C. 170(h), and applicable regulations thereunder, if applicable, and is eligible to receive this Simpkins Bog II Conservation Restriction, Yarmouth, MA 13 Conservation Restriction under Section 32 of Chapter 184 of the Massachusetts General Laws; and 4. the assignment complies with Article 97 of the Amendments to the Constitution of the Commonwealth of Massachusetts, if applicable. VIII. SUBSEQUENT TRANSFERS A. 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 Grantee not less than twenty (20) days prior to the effective date of such transfer. 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 Grantee may record, in the applicable registry of deeds, or register in the applicable land court 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. B. Grantor’s Liability The Grantor shall not be liable for violations occurring after their ownership. 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. IX. ESTOPPEL CERTIFICATES Upon request by the Grantor, the Grantee shall, within thirty (30) 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. X. 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 Grantee 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.C to ensure that merger does not occur and that this Conservation Restriction continues to be enforceable by a non-fee owner. XI. AMENDMENT Simpkins Bog II Conservation Restriction, Yarmouth, MA 14 A. Limitations on Amendment Grantor and Grantee may amend this Conservation Restriction only to correct 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: 1. affect this Conservation Restriction’s perpetual duration; 2. be inconsistent with or materially impair the Purposes; 3. 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; 4. affect the status of Grantee as a “qualified organization” or “eligible donee” under any applicable laws, including 26 U.S.C. Section 170(h) and related regulations, and Sections 31, 32, and 33 of Chapter 184 of the Massachusetts General Laws; 5. 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 Grantee, of the economic impact of the proposed amendment; 6. alter or remove the provisions described in Paragraph VI (Termination/Release/ Extinguishment); 7. cause the provisions of this Paragraph XI to be less restrictive; or 8. cause the provisions described in Paragraph VII.C (Running of the Benefit) to be less restrictive. B. Amendment Approvals and Recording No amendment shall be effective unless documented in a notarized writing executed by Grantee and Grantor, approved by the Town of Yarmouth and by 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. XII. EFFECTIVE DATE This Conservation Restriction shall be effective when the Grantor and the Grantee 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 recorded in the Barnstable County Registry of Deeds. XIII. 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: Native Land Conservancy P.O. Box 974 Simpkins Bog II Conservation Restriction, Yarmouth, MA 15 Mashpee, Massachusetts 02649 To Grantee: Yarmouth Conservation Trust P.O. Box 376 Yarmouth Port, Massachusetts 02675 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. XIV. GENERAL PROVISIONS A. Controlling Law The interpretation and performance of this Conservation Restriction shall be governed by the laws of the Commonwealth of Massachusetts. B. 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. C. 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. D. Entire Agreement This instrument sets forth the entire agreement of the Grantor and Grantee with 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. XV. 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”) titled, “Baseline Report for Simpkins Bog II Conservation Restriction”, dated November 2024 , prepared by 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 Grantee Simpkins Bog II Conservation Restriction, Yarmouth, MA 16 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. XVI. MISCELLANEOUS A. 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. B. Release of Homestead The Grantor attests that there is no residence on or abutting the Premises (including areas excluded from the Premises) that is occupied or intended to be occupied as a principal residence by a spouse, former spouse, or children of the grantor, or a spouse, former spouse, or children of a beneficiary of the trust, if Premises is owned by a trust. C. 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. D. Executory Limitation If 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 Grantee’s rights and obligations under this Conservation Restriction shall vest in such organization as a court of competent jurisdiction shall direct pursuant to the applicable Massachusetts law and with due regard to the requirements for an assignment pursuant to Paragraph VII. E. 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. Simpkins Bog II Conservation Restriction, Yarmouth, MA 17 F. The following signature pages are included in this Grant: Grantor – Native Land Conservancy, Inc. Grantee Acceptance – Trustees of the Yarmouth Conservation Trust Approval of Town of Yarmouth Select Board Approval of the Secretary of Energy and Environmental Affairs of the Commonwealth of Massachusetts. G. The following exhibits are attached and incorporated herein: Exhibit A: Legal Description of Premises Exhibit B: Reduced Copy of Recorded Plan of Premises Simpkins Bog II Conservation Restriction, Yarmouth, MA 18 WITNESS my hand and seal this ___ day of ___________, 2024 NATIVE LANDS CONSERVANCY, INC. Ramona L. Peters, duly authorized President THE COMMONWEALTH OF MASSACHUSETTS Barnstable, ss: On this day of , 2024, before me, the undersigned notary public, personally appeared Ramona L. Peters, President, Native Land Conservancy, Inc., the corporation named in the foregoing instrument, and proved to me through satisfactory evidence of identification, which was personal knowledge of identity, 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 on behalf of the corporation. ______________________________ Mark H. Robinson, Notary Public My Commission Expires: 8 July 2027 Simpkins Bog II Conservation Restriction, Yarmouth, MA 19 CERTIFICATE OF VOTE I, Gertrude Henricks, duly elected Clerk of Native Land Conservancy, Inc., hereby certify that at a meeting of the Board of Directors duly called on the day of , 2024 at which meeting, acting throughout upon motion duly made and seconded, a quorum being present, it was unanimously VOTED: that Ramona L. Peters, President of Native Land Conservancy, Inc., be and hereby is authorized in the name of Native Land Conservancy, to grant a conservation restriction on 9.120 acres in the Town of Yarmouth, Massachusetts, as more particularly described in a document termed a conservation restriction and recorded herewith, her execution thereof shall be sufficient evidence of the Board of Director’s approval. I further certify that Ramona L. Peters is the duly elected President of Native Land Conservancy, Inc., and that I am the duly elected Clerk and that said vote is still in full force and effect. A true copy. Attest: Gertrude Henricks, Clerk Native Land Conservancy, Inc. Date: , 2024 Simpkins Bog II Conservation Restriction, Yarmouth, MA 20 ACCEPTANCE OF GRANT At a meeting duly held on , 2024, a majority of the Trustees of the Yarmouth Conservation Trust voted to accept the foregoing Conservation Restriction from Native Land Conservancy, Inc. and hereby accept the Conservation Restriction. Grantee: Yarmouth Conservation Trust By its Trustees: Christine Marzigliano Elizabeth G. Manning Sharon K. Donegan Donald F. Henderson Richard F. Martin John Reeve THE COMMONWEALTH OF MASSACHUSETTS Barnstable, ss: On this day of , 2024, before me, the undersigned notary public, personally appeared , as Trustees of and acting as such on behalf of the Yarmouth Conservation Trust, and proved to me through satisfactory evidence of identification which was personal knowledge of identity to be the persons whose names are signed on the proceeding or attached document, and acknowledged they are duly authorized to act on behalf of said Trust, and further acknowledged to me that they signed it voluntarily for its stated purpose on behalf of said Trust, before me. ______________________________ Mark H. Robinson, Notary Public My Commission Expires: 8 July, 2027 Simpkins Bog II Conservation Restriction, Yarmouth, MA 21 APPROVAL OF TOWN OF YARMOUTH SELECT BOARD We the undersigned, being a majority of the Select Board of the Town of Yarmouth, hereby certify that at a public meeting duly held on ___________, 2024, the Select Board voted to approve the foregoing Conservation Restriction from Native Land Conservancy, Inc. to the Trustees of the Yarmouth Conservation Trust in the public interest pursuant to Section 32 of Chapter 184 of the Massachusetts General Laws. TOWN OF YARMOUTH SELECT BOARD Tracy Post Mark Forest Dorcas McGurrin Joyce Flynn THE COMMONWEALTH OF MASSACHUSETTS Barnstable, ss: On this day of , 2024, before me, the undersigned notary public, personally appeared , , , and , and proved to me through satisfactory evidence of identification which was ______________________________ 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. ______________________________ Notary Public My Commission Expires: Simpkins Bog II Conservation Restriction, Yarmouth, MA 22 APPROVAL OF SECRETARY OF ENERGY AND ENVIRONMENTAL 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 Native Land Conservancy, Inc. to the Trustees of the Yarmouth Conservation Trust in the public interest pursuant to Section 32 of Chapter 184 of the Massachusetts General Laws. Dated: ________________, 2024 Rebecca L. Tepper Secretary of Energy and Environmental Affairs THE COMMONWEALTH OF MASSACHUSETTS SUFFOLK, ss: On this day of , 2024, 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 Public My Commission Expires: Simpkins Bog II Conservation Restriction, Yarmouth, MA 23 EXHIBIT A Description of the Premises The land in the Town of Yarmouth, Massachusetts, County of Barnstable, Commonwealth of Massachusetts containing 9.120 acres, +/-, shown as “Parcel B” on a plan of land titled “Approval Not Required Plan of Land in Yarmouthport, Massachusetts, Prepared for Jacqueline Rivero, 555 Route 6A, Yarmouth-Port, MA”, dated 14 August, 2020, by J.M. O’Reilly & Associates, Inc., 1573 Main Street, P.O. Box 1773, Brewster, Massachusetts 02631, recorded at Barnstable County Registry of Deeds at Plan Book 687, Page 39. For Grantor’s title, see deed dated June 5, 2024, and recorded at the Barnstable County Registry of Deeds at Book 36404, Page 192. Street Address: 0 Route 6A, Yarmouth (Port), Massachusetts 02675 Town of Yarmouth Assessors Map: Map 124, Lot 111.3 Simpkins Bog II Conservation Restriction, Yarmouth, MA 24 EXHIBIT B Reduced Copy of Plan of Premises For official full size plan see Barnstable Registry of Deeds Plan Book 687 Page 39.