HomeMy WebLinkAboutTitle 5 Nitrogen Loading Restriction and Easement Credit LandLocus: 446 Station Avenue, South Yarmouth
Title 5 Nitrogen Loading Restriction and Easemetrt
(Credit Land)
This Grant of a Title 5 Nitrogen Loading Restriction and Easement is made as of this _day of
_,2022, by Colbea Enterprises, L.L.C., a Delaware limited liability company, with a
principal office at 2050 Plainfield Pike, Cranston, RI 02921 ["Grantor"]
WHEREAS, the Grantor is the owner in fee simple of the land located at 446 Station Avenue,
South Yarmouth, Bamstable County, MA ["Credit Land"], which land is shown on a plan of land entitled
" and recorded with the Bamstable County Registry of Deeds in PIan Book
Page _ ["Plan"l; and
WHERIAS, the Grantor l"Tenant ofthe Facility Land"] is the prospective tenant at the property
located at 473, 419, and 487 (portion) Station Avenue, South Yarmouth, MA, which land is shown on a
plan of land entitled "_" ["Facility Land"]; and
WHEREAS, Realty Capital Investments, LLC, a Massachusetts limired liability company, with a
principal office at I 59 Cambridge Street, Allston, MA 02134 ["Owner of the Facility Land"] is the
prospective owner ofthe Facility Land; and
WIIEREAS the Facility Lard has the benefit of a Nitrogen Loading Restriction and Easement,
being more particularly bounded and described in a Title 5 Nitrogen Loading Restriction and Easement
(Facility Land), to be recorded with the Bamstable County Registry of Deeds herewith ["Faciliq, Land
Restriction and Easement"]; and
WHEREAS the Nitrogen Loading Facility Aggregation PIan has been approved by the
Board of Health in accordance with the Department ofEnvironmental Protection's (DE,P) "Guidelines for
Title 5 Aggregation ofPlans and Nitrogen Loadingi'said approval being based upon the agreement by
the Crantor to incur certain obligations regarding the number of bedrooms, as defined in 310 CMR
15.002, and,/or the wastewater discharge design flow in any improvements located on the Facility Land
and maintenance ofthe Restriction and Easement to ensure protection ofthe nitrogen loading limitation
of 440 gpd/acre discharge standard pursuant to 3 10 CMR I 5.2 l4 in nitrogen-sensitive areas; and to grant
to the Tenant ofthe Facility Land, the Owner ofthe Facility Land, and the Town of Yarmouth, a
Massachusetts municipal corporation situated in Barnstable County, having an address at I 146 Route 28,
South Yarmouth, MA, acting by and through its Board of Health ["Grantee"], a perpetual easement to
ensure maintenance ofthe Credit Land as nitrogen credit land including but not limited to, removal ofany
prohibited uses and in connection herewith a perpetual easement to pass and repass over the Credit Land
for purposes of inspection ofthe Credit Land to ensure compliance with and fulfillment ofthe terms of
this Credit Land Restriction and Easement as hereafter set forth:
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 (Credit Land) ["Credit Land Restriction and Easement"],
consisting of approximately 25,000-square feet of land, in, on, upon, through, over and under the Credit
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Land, the terms and conditions of which as follows:
PI]RPOSF,:
The purpose ofthis Credit Land Restriction and Easement is to protect and preserve the quality
and quantity ofgroundwater 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 limiting the
introduction of nitrogen and other.pollutants into, and maintaining the natural uptake of pollutants and the
recharge of the groundwater which takes place on the Credit Land for the said water supply and for the
specific benefit ofthe above-referenced Facility Land.
OBLIGATIONS AND EASEMENT
Prohibitions. The Grantor agrees to maintain the Credit Land as nitrogen credit land by
prohibiting activities which have a detrimental effect on nitrogen loading on the Credit Land,
including but not limited to, wastewater discharges, the use of nitrogen fertilizer, the introduction
ofartificial impervious surfaces, the raising, breeding or keeping of animals, livestock or poultry
for commercial purposes, and the creation or introduction ofland under water. A change in the
condition ofthe Credit Land which results in the Credit Land or a portion thereofbeing within a
Velocity Zone or Regulatory Floodway will render the Credit Land or said portion thereof
ineligible for nitrogen credit pursuant to 310 CMR l5.216.
Easements. In creating this Credit 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 Credit Land to do any and all acts deemed necessary to maintain the Credit
Land as nitrogen credit land, together \yith a right to pass and repass by foot and by vehicle over
the Credit Land for said purposes, and for purposes of inspecting the Credit Land to ensure
compliance with and fulfillment of the terms of this Credit Land Restriction and Easement.
3. Severabiliw. Ifany 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. In the event the invalidated provision is ofsuch a nature that it cannot be so modified,
the provision shall be deemed deleted fiom 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.
.1. Enfbrcement. The Grantor expressly acknowledges that a violation ofthe terms ofthis
instrument could result in the following:
(i) Upon determination by a court of competent jurisdiction, in the issuance ofcriminal and
civil penalties, and./or equitable remedies, including but not limited to, injunctive relief,
such injunctive reliefcould include the issuance ofan order to modifo or remove any
improvements constructed upon the Credit Land in violation ofthe terms of this Credit
Land Restriction and Easement: and
(iD [n the assessment ofpenalties and enforcement action by the Yarmouth Board ofHealth
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and the DEP to enforce the terms of this Credit l,and Restriction and Easement, pursuant
to Title 5; M.G.L. c.l I l, $$ 17, 31, 122, 124,125, 125A, l27A through 127O, and 129:,
and M.G.L. c.83, $11.
Acts Bevond Grantor's Control Nothing contained in this Credit 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 Credit Land resulting from causes beyond the Grantor's
control, including without limitation, acts caused by trespass on, above or under the Credit Land
or from any prudent action taken by the Grantor under emergency conditions to prevent, abate or
mitigate signifioant injury to the Credit Land resulting from such causes. Notwithstanding the
above, the Grantor shall undertake economically reasonable and practicable efforts 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 Credit Land Restriction and Easement sets forth the ri
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ghts,
liabilities, agreements and obligations upon and subject to which the Credit Land or any portion
thereof, shall be left unimproved or according to which said Credit 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 Credit Land and 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 orthe
Grantor. The Grantor hereby covenants for itselfand its successors and assigns, to stand seized
and hold title to the Credit Land, as applicable thereto, subject to this Credit Land Restriction and
Easement, provided, however, that a violation of this Credit Land Restriction and Easement shall
not result in a forfeiture or reversion ofthe Grantor's title to the Credit 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 forth 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 Credit Land Restriction and
Easement herein established shall be adhered to and not violated and that their respective interests
in the Credit Land and the Credit Land Restriction and Easement, as applicable thereto, shall be
subject to the provisions herein set forth.
8. Incorporation into Deeds. Mort Leases and Instruments of Transfer The Grantor herebv
agrees to incorporate this Credit Land Restriction and Easement, in full or by reference, into all
deeds, easements, mortgages, leases, licenses, occupancy agreements or any other instrument of
transfer by which an interest in and/or a right to use the Credit Land, or any portion thereot is
hereafter conveyed.
Recordation. The Grantor shall record this Credit Land Restriction and Easement with the
Barnstable County Registry ofDeeds within _ ( ) days ofthe latter of: i) receipt
from the Yarmouth Board of Health ofthe approved Credit Land Restriction and Easement or ii)
the expiration of the 60-day DEP constructive approval period pursuant to 3 l0 CMR I 5.216. The
Grantor shall file with the Yarmouth Board ofllealth and the DEP an attested copy ofthe Credit
Land Restriction and Easement within 30 davs after it is recorded
10. Amendment and Release. This Credit Land Restriction and Easement may be amended or
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released only upon approval by the Yarmouth Board of Health. The Yarmouth Board of Health
shall release this Credit 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 wilh 310 CMF 15.354 or ii) the Facility Land is no longer located
within a nitrogen sensitive area pursuant to 3 l0 CMR 15.21 1. Any such amendment or release
shall be recorded with the Bamstable County Registry ofDeeds and an attested copy ofsaid
arnendment or release shall be filed with the Yarmouth Board of Health and the DEP within 30
days after it is recorded.
Term. This Credit Land Restriction and Easement shall ruo in perpetuity and is intended to
conform to M.C.L. c. I 84, $26, as amended.
Rights Reserved. This Credit 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 "Guidelines for Title 5 Aggregation of Flows and
Nitrogen Loading." lt is expressly agreed that acceptance ofthe Credit 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 affect any
legal or equitable right of the Board of Health or the DEP to issue any future order
with respect to the Credit Land or Facility Land, as applicable thereto, 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 of the Cred it Land Restriction and Easement
shall not serve to impose any obligations, liabilities or any other duties upon the Yarmouth Board
of Health.
Effective Date. This Credit Land Restriction and Easement shall become effective upon its
recordation with the Barnstable County Registry of Deeds.
[See Next Page for Signatures]
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WITNESS the execution hereof under seal this day of
COM.\IONWEALTH OF MASSACHUSETTS
Barnstable. ss.
2022.
Colbea Enterprises, L.L.C.
Bv
, Manager
2022
On this dav 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 ofColbea Enterprises, L.L.C.
Notarv Public:
My Commission expires
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APPROVAL BY YARMOTITH BOARD OFHEALTH
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 ofthe Town of Yarmouth
CONIMONWEALTH OF MASSACH USETTS
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
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
volunrarill for its stated purpose.
Notary Public
My Commission expires:
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