HomeMy WebLinkAboutTitle 5 Nitrogen Loading Restriction and Easement Facility LandLocus: 473- 479, and 487 (portion) Station Avenue, South Yarmouth
Title 5 Nitrogen Loading Restriclion and Easement
(Facility Land)
_,2022, by Colbea Enterprises, L.[,.C., a Delarvare limited liability company, with a
principal office at 2050 Plainfield Pike, Cranston, RI 02921 ["Grantor"].
WHEREAS, the Grantor is the prospective tenant ofthe land located at 473, 479, and 481
(portion) Station Avenue, South Yarmouth, Barnstable County, MA, which land is shown on a plan of
land entitled " and on Exhibit A attached hereto and made a part hereof
[collectively "Facility Land"];
WHEREAS, Realty Capital Investments, LLC, a Massachusetts limited liability company, with a
principal office at 159 Cambridge Street, Allston, MA 02134 ["Realty Capital"], is the prospective
purchaser ofthe Facility Land, and current title to the Facility Land is recorded with the Barnstable
County Registry of Deeds in Book 28068, Page 126 (473 Station Avenue), Book 28068, Page 128
(479 Station Avenue), and Book 18303, Page 272 (487 {portion} Station Avenue);
WHEREAS, the Grantor desires to restrict the amount of wastewater discharge design flow in the
improvements to be constructed on the Facility Land through the use of this Nitrogen Loading Restriction
and Easement, and FURTHER WHEREAS, Realty Capital assents to this grant; and
WHEREAS the Facility Land has the benefit of a Nitrogen Loading Restriction and Easement
over approximately 25,000 square feet of land labeled "_" on a plan entitled '_"
and prepared by "" which plan is attached to a Title 5 Nitrogen Loading Restriction and
Easement (Credit Land), to be recorded with the Bamstable County Registry ofDeeds herewith; and
WHEREAS the Nitrogen Loading Facility Aggregation Plan has been approved by the
Board of Health in accordance with the Department ofEnvironmental Protection's (DEP) "Guidelines for
Title 5 Aggregation ofPlans and Nitrogen Loading;" said approval being based upon the agreement by
the Grantor to incur certain obligations regarding the wastewater discharge design flow in the
improvements to be located on lhe Facility Land and maintenance ofthe Restriction and Easement to
ensure protection ofthe nitrogen loading limitation of440 gpd/acre discharge standard pursuant to 310
CMR 15.214 in nitrogen-sensitive areas; and to grant to the Town of Yarmouth, a Massachusetts
municipal corporation situated in Bamstable County, having an address at I 146 Route 28, South
Yarmouth, MA 02664, acting by and through its Board of Health [herein "Grantee"], a perpetual
easement to ensure maintenance ofthe Facility Land, including but not limited to, removal ofany
prohibited uses and in connection herewith a perpetual easement to pass and repass over the Facility Land
for purposes of inspection of the Facility Land to ensure compliance with and fulfillment ofthe terms of
this Facility Land Restriction and Easement as hereafter set forth;
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This Grant of a Title 5 Nitrogen Loading Restriction and Easement is made as of this _day of
NOW, THEREFORE, pursuant to the provisions of 310 CMR 15.216, the Grantor does hereby
GRANT to the Grantee, for nominal, non-monetary consideration, with Quitclaim Covenants, a Title 5
Nitrogen Loading Restriction and Easement (Facility Land) [herein "Facility Land Restriction and
Easement"] in, on, upon, through, over and under the Facility Land, the terms and conditions of which as
follows:
PURPOSE
The purpose ofthis Facility Land Restriction and Easement is to protect and preserve the quality
and quantiry of groundwater resources in the area ofthe public and private wells in the Town of
Yarmouth. Massachusetts, in order to ensure a safe and healthy public and private water supply for the
present and future inhabitants ofthe area. It shall also be for the specific purpose of Iimitingthe
introduction ofnitrogen and other pollutants into and maintaining the natural uptake of pollutants and the
recharge ofthe groundwater which takes place on the Facility Land for the said water supply.
OBLIGATIONS AND EASEMENT:
Prohibitions. The Grantor agrees to limit the wastewater discharge design flow to no more than
_ gallons per day.
2. Easements. [n creating this Facility Land Restriction and Easement, the Grantor hereby grants to
the Yarmouth Board of Health, its agents, contractors, subcontractors and employees, a perpetual
EASEMENT at reasonable times and with reasonable notice to enter upon and the right to bring
equipment onto the Facility Land to do any and all acts deemed necessary to maintain the Facility
Land in a manner which ensures protection of the nitrogen loading limitation of 440 gpd/acres
discharge standard pursuant to 3 l0 CMR 1 5.2 l4 together with a right to pass and repass by foot
and by vehicle over the Facility Land for said purposesr and for purposes of inspecting the
Facility Land to ensure compliance with and fulfillment ofthe terms ofthis Facility Land
Restriction and Easement.
Severabilitv. lfany court or other tribunal determines that any provision of this instrument is
invalid or unenforceable, such provision shall be deemed to have been modified automatically to
conform to the requirements for validity and enforceability as determined by such court or
tribunal. ln the event the invalidated provision is ofsuch a nature that it cannot be so modified,
the provision shall be deemed deleted from this instrument as though it had never been included
herein. In either case, the remaining provisions ofthis instrument shall remain in full force and
effect.
4. Enforcement. The Grantor cxpressly acknowledges that a violation ofthe terms of this
instrument could result in the following:
(i) Upon determination by a court of competent jurisdiction, in the issuance ofcriminal and
civil penalties, and.ior equitable remedies, including, but not limited to. injunctive reiief.
such injunctive reliefcould include the issuance ofan order to modi0, or remove any
improvements constructed upon the Facility Land in violation ofthe terms ofthis Facility
Land Restriction and Easement: and
In the assessment ofpenalties and enforcement action by the Yarmouth Board of Heatth
and the DEP to enforce the terms ofthis Facility Land Restriction and Easement,
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( ii)
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pursuant to Title 5; M.G.L.c.ll1, $$ 17,31,122,124, 125,125A, l27A throu gh 1270,
and 129; and M.G.L. c.83, $ I 1.
Acts Bevond Grantor's Control. Nothing contained in this Facility Land Restriction and
Easement shall be construed to entitle the Grantee or any other govemmental body to bring any
action against the Grantor or the Grantor's respective executors, administrators, heirs, successors
and assigns for any injury to or change in the Facility Land resulting from causes beyond the
Grantor's control, including without limitation, acts caused by trespass on, above or under the
Facility Land or from any prudent action taken by the Grantor under emergency conditions to
prevent. abate or mitigate significant injury to the Facility Land resulting from such causes.
Notwithstanding the above, the Grantor shall undertake economically reasonable and practicable
eftbrts to correct any such injury or change which is inconsistent with these grants as soon as
possible.
6. Provisions to Run with the Land This Facility Land Restriction and Easement sets forth the
rights, liabilities, agreements and obligations upon and subject to which the Facility Land or any
portion thereof, shall be left unimproved or according to which said Facility Land may be
improved, held, used, occupied, leased, sold, hypothecated, encumbered, or conveyed. The
rights, liabilities, agreements and obligations herein set forth shall run with the Facility Land, as
applicable thereto, and any portion thereofand shall inure to the benefit ofand be binding upon
the Grantor and all parties claiming by, through or under the Yarmouth Board of Health or the
Grantor. The Grantor land Realty Capital] hereby covenants for itselfand its successors and
assigns, to stand seized and hold title to the Facility Land, as applicable thereto, and any portion
thereof, subject to this Facility Land Restriction and Easement, provided, however, that a
violation ofthis Facility Land Restriction and Easement shall not result in a forfeiture or
reversion ofthe Crantor's [Realty Capital's] title to the Facility Land, as applicable thereto.
Concurrence Presumed. It is agreed that the Grantor and all parties claiming by, through or under
the Grantor shall be deemed to be in accord with the provisions herein set lorth and to agree for
and among themselves and any party claiming by, through or under them, and their respective
agents, contractors, sub-contractors and employees, that the Facility Land Restriction and
Easement herein established shall be adhered to and not violated and that their respective interests
in the Facility Land and the Facility Land Restriction and Easement, as applicable thereto, shall
be subject to the provisions herein set forth.
8. Incomoration into Deeds. Mortsase Leases and Instruments of Transler The Grantor hereby
agrees to incorporate this Facility Land Restriction and Easement, in full or by reference, into all
deeds, easem€nts, mortgages, leases, licenses, occupancy agreements or any other instrument of
transfer by which an interest in and/or a right to use the Facility Land, or any portion thereof, is
hereafter conveyed.
9. Recordation. The Grantor shall record this Facility Land Restriction and Easement with the
Bamstable County Registry of Deeds within _ ( ) days of the latter of: i) receipt
from the Yarmouth Board of Health ofthe approved Facility Land Restriction and Easement or ii)
the expiration of the 60-day DEP constructive approval period pursuant to 310 CMR l5.Z l6. The
Grantor shall file with the Yarmouth Board of Health and the DEP an attested copy of the Facility
Land Restriction and Easement within 30 davs after it is recorded.
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This Facility Land Restriction and Easement may be amended or
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10. Anrendment and Ii.cle'ase
released only upon approval bythe Yarmouth Board ofHealth. The Yarmouth Board of Health
shall release this Facility Land Restriction and Easement in the event i) the Facility Land is
connected to a municipal sewer system and the septic systems serving the Facility Land are
abandoned in accordance with 310 CMF 15.354 or ii) the Facility Land is no longer located
withinanitrogensensitiveareapursuanttoJl0CMRl5.2l5. Any such amendment or release
shall be recorded with the Bamstable County Registry ofDeeds and an attested copy ofsaid
amendment or release shall be filed with the Yarmouth Board of Health and the DEP within 30
days after it is recorded.
l1 Term. This Facility Land Restriction and Easement shall run in perpetuity and is intended to
conform to M.G.L. c.184, $26, as amended.
t2.Riehts Reserved. This Facility Land Restriction and Easement is granted in connection with the
approval by the Yarmouth Board of Health ofa Nitrogen Loading Facility Aggregation Plan
pursuant to 310 CMR 15.216 and the DEP's "Cuidelines for Title 5 Aggregation of Flows and
Nitrogen Loading." It is expressly agreed that acceptance ofthe Facility Land Restriction and
Easement by the Yarmouth Board of Health or constructive approval ofthe Nitrogen Loading
Facility Aggregation Plan by the DEP shall not operate to bar, diminish, or in any way aft'ect any
legal or equitable right ofthe Yarmouth Board of Health or the DEP to issue any firture order
with respect to the Facility Land or in any way affect any other claim, action, suit, cause ofaction
or demand which the Yarmouth Board of Health or the DEP may have with respect thereto.
Acceptance ofthe Facility Land Restriction and Easement shall not serve to impose any
obligations, liabilities or any other duties upon the Yarmouth Board of Health.
13. Eft'ective Date. This Facility Land Restriction and Easement shall become effective upon its
recordation with the Bamstable County Registry of Deeds.
[See Next Page for Signatures]
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WITNESS the execution hereof under seal this _ day of
Colbea Enterprises, L.L.C
By Bv:
Manager
COMMONWEALTH OF MASSACHUSETTS
Bamstable. ss.
2022.
Realty Capital Investments, LLC
, Manager
2022
On this day of 2022, before me, the undersigned notary public, personally
appeared Manager, as aforesaid. proved to me through satisfactory
evidence of identification, which was to be the
person whose name is signed on the preceding or attached document, and acknowledged to me that he
signed it voluntarily for its stated purpose as Manager of Colbea Enterprises, L.L.C.
My Commission expires
COMMONW EALTH OF MASSACHUSETTS
Barnstablc- ss )n))
On this _ day of _,2022, before me, the undersigned notary public, personally
appeared Manager, as aforesaid, proved to me through satisfactory
evidence of identification, which was to be the
person whose name is signed on the preceding or attached document, and acknowledged to me that he
signed it voluntarily for its stated purpose as Manager of Realty Capital Investments, LLC.
Notary Public:
My Commission expires;
)
Notarv Public:
APPROVAL BY YARMOUTH BOARD OF HEALTH
We, the Yarmouth Board of Health hereby approve and accept the foregoing Grant of Title 5
Nitrogen Loading Restriction and Easement (Facility Land) to the Town of Yarmouth through its Board
of Health.
Board of Health of the Town of Yarmouth
COMMONW EALTH OF MASS,{CHUSETTS
Bamstable. ss .2022
On this day of _,2022, before me, the undersigned notary public, personally
appeared as aforesaid, proved to me through satisfactory evidence of
identifi cation, which was to be the person
whose name is signed on the preceding or attached document, and acknowledged to me that he signed it
voluntarily for its stated purpose.
Notary Public:
My Commission expires:
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