Northampton CR #70 Ref. #16809 EEA Approved for Local SignaturesGrantor: City of Northampton
Grantee: Massachusetts Audubon Society, Inc.
Address of Premises:Old Wilson Road, Northampton, Massachusetts
Assessors Map37, Lot 49 (portion of lot)
For Grantor’s title see:HampshireCounty Registry of Deeds at Book_____, Page_____
CONSERVATION RESTRICTION
Rocky Hill Greenway-Nashawannuck section, Northampton
(Former Pine Grove Golf Course property)
The City of Northampton, Massachusetts, a Massachusetts municipal corporation duly organized under the laws of the Commonwealth of Massachusetts and having an address at City Hall, 210
Main Street, Northampton, Massachusetts 01060, acting by and through its Conservation Commission pursuant to M.G.L. Chapter 40 section 8C, an agency of the City, being the sole owner
of the Premises as defined herein, and for its successors and assigns (“Grantor”), acting pursuant to Sections 31, 32, and 33 of Chapter 184 of the Massachusetts General Laws, grants,
with QUITCLAIM COVENANTS, to Massachusetts Audubon Society, Inc., a Massachusetts charitable corporation with a principal place of business at 208 South Great Road, Lincoln, Massachusetts
01773, its successors and permitted assigns ("Grantee")for nominal consideration of one dollar ($1.00), IN PERPETUITY AND EXCLUSIVELY FOR CONSERVATION PURPOSES, the following Conservation
Restriction on the entirety ofa 105.36-acre parcel of land located in Northampton, MA(“Premises”), which Premises is more particularly described in Exhibit A and shown in the reduced
copy of a recorded survey plan of land in Exhibit B, both of which are attached hereto and incorporated herein.
PURPOSES:
This Conservation Restriction is defined in and authorized by Sections 31-33 of Chapter 184 of the General Laws and otherwise by law. The purpose of this Conservation Restriction is
to assure that the Premises will be maintained in perpetuity for conservation purposes, in a natural, scenic and undeveloped condition, and to prevent any use or change that would impair
or interfere with its conservation and preservation values (“conservation values”).
The Premises was acquired using M.G.L. c. 44B Community Preservation Act (CPA) funds, together with LANDgrant funds (as described below), and a copy of the City Council Vote authorizing
the use of such funds for such purpose is attached hereto as Exhibit C.
The Premises was acquired utilizing, in part, assistance from the Local Acquisitions for Natural Diversity (LAND) program pursuant to Section 11 of Chapter 132A of the Massachusetts
General Laws and Section 2A of Chapter 286 of the Acts of 2014, and therefore the Premises is subject to a LAND Grant Project Agreement (“Project Agreement”) recorded at the Hampshire
County Registry of Deeds in Book _____ Page _____.
Theconservation values include the following:
Open Space Protection. The Premises contributes to the protection of the scenic and natural character of Northampton.The protection of the Premises will enhance the open-space value
of these and the abutting land already conserved known as the Rocky Hill Greenway.The Rocky Hill Greenway has been protected by the City of Northampton in partnership with Mass Audubon.
Protection of Wildlife Habitat. The Premises are located directly west of Arcadia Wildlife Sanctuary, a 700+ acre property of the Massachusetts Audubon Society, and is part of a wildlife
corridor connecting Arcadia to the open spaces of western Northampton. Tracking studies have confirmed wildlife use of this corridor, and its protection will help maintain the viability
of these wildlife populations at the periphery of the Northampton urban center.
Public Access. Public access to the Premises will be allowed for passive outdoor recreation, education, and nature study.The Premises is adjacent to other conserved lands in the Rocky
Hill Greenway, which abut both sides of the New Haven and Northampton Canal Line/Manhan Rail Trail, a heavily used rail trail connecting Easthampton and Northampton, and eventually New
Haven and Boston. Preservation of the Premises will enhance the recreational experience of trail users. The Premises will be open to the public for hiking and other permitted uses
of Northampton conservation land.
Water Quality Protection. The Premises, which was a golf course at the time the City of Northampton acquired it,contains roughly3,300 feet of Nashawannuck Brook, a small perennial stream
that flows through the golf course’s central area and eventually into Arcadia. Preservation and restoration of the Premises will help restore and maintain water quality of these important
resources. Restoration of the Premises will provide an exceptional climate change adaptation opportunity through improving the hydrological function of Nashawannuck Brook.
Soils. The central portion of the Premises includes approximately 32 acres of Prime Farmland soils. The Premises abut conserved land in the Rocky Hill Greenway containing “Prime 1”
and “Prime 2” Forest Land. Those are the two highest categories of productive forestland in the Prime Forestland dataset prepared by the Department of Natural Resource Conservation
at UMass-Amherst. Preservation of the Premises will help maintain the productivity of these farm and forest soils. Restoration of the Premises will include tree planting.
Furtherance of Government Policy, Northampton: Protection of the Premises meets the goals of the Sustainable Northampton Plan, Northampton Community Preservation Plan, and Open Space,
Recreation and Multi-use Trail Plan to protect open space, provide for passive recreation, mitigate the impact of climate change, and protect heritage landscapes.
Furtherance of Government Policy, Massachusetts: Protection of the Premises is in furtherance of Article 97 of the Constitution of the Commonwealth of Massachusetts, and consistent
with Community Preservation Act requirements and funding appropriated by the City Council vote that authorized the purchase of the Premises (see Exhibit C).
These and other conservation values of the Premises, as well as its current uses and state of improvement, are described in a Baseline Documentation Report (“Baseline Report”) prepared
by Grantee with the cooperation of the Grantor, consisting of maps, photographs, and other documents and on file with the Grantee and referenced herein. The Baseline Report (i) is acknowledged
by Grantor and Grantee 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, and (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.In addition, a Restoration Plan (see Section II(B)(13)) will be prepared and, when finalized, will be appended to the Baseline Report. Significant restoration
activities may take place on the Premises as set forth in the Restoration Plan, which Plan may be used along with the Baseline Report for subsequent monitoring of compliance with the
terms of this Conservation Restriction. Notwithstanding the foregoing, the parties may utilize any evidence of the condition of the Premises at the time of this grant other than the
Baseline Report, should the Baseline Report be unavailable or if it does not adequately address the issues presented.
PROHIBITED ACTS AND USES, EXCEPTIONS THERETO, AND PERMITTED USES
Prohibited Acts and Uses
Subject to the exceptions set forth herein, the Grantor will not perform or allowothers to perform the following acts and uses which are prohibited on, above, and below the Premises:
Constructing, placing or allowing to remain any temporary or permanent building, tennis court, landing strip, mobile home, swimming pool, asphalt or concrete pavement, sign, fence, billboard
or other advertising display, antenna, utility pole, tower, solar panel, solar array,conduit, line or other temporary or permanent structure or facility on, above or under the Premises;
Mining, excavating, dredging or removing from the Premises of soil, loam, peat, gravel, sand, rock or other mineral resource or natural deposit or otherwise making topographical changes
to the area;
Placing, filling, storing or dumping of soil, refuse, trash, vehicle bodies or parts, rubbish, debris, junk, tree and other vegetation cuttings generated off-site,waste or other substance
or material whatsoever or the installation of underground storage tanks;
Cutting, removing or otherwise destroying trees, grasses or other vegetation;
Activities detrimental to drainage, flood control, water conservation, water quality, erosion control, soil conservation, wildlife habitat, or archaeological conservation;
Use, parking or storage of vehicles including motorcycles, mopeds, all-terrain vehicles, trail bikes, or any other motorized vehicles on the Premises except for vehicles necessary for
public safety (i.e., fire, police, ambulance, other government officials) in carrying out their official duties or as necessary for the mobility impaired;
Subdivision or conveyance of a part or portion of the Premises alone, or division or subdivision of the Premises (as compared to conveyance of the Premises in its entirety which shall
be permitted), and no portion of the Premises may be used towards building or development requirements on this or any other parcel;
The use of the Premises for business, residential or industrial use, or for more than de minimis commercial recreation;
Any other use of the Premises or activity which is inconsistent with the purpose of this Conservation Restriction or which would impair its conservation values.
Reserved Rights and Exceptions The Grantor reserves the right to conduct or permit the following activities and uses on the Premises, but only if such uses and activities do not impair
the conservation values or purposes of this Conservation Restriction.
Vegetation Management. The selective minimal removing of brush, pruning and cutting to prevent, control or remove hazards, disease, insect or fire damage, or to preserve the present
condition of the Premises, including vistas as documented in the Baseline Report, woods roads, fence lines and trails and meadows;
Non-native or nuisance species. The removal of non-native or invasive species, the interplanting of native species, and the control of species in a manner that minimizes damage to surrounding,
non-target speciesand preserves water quality. With prior written notice to Grantee, the exercise of this Reserved Right may include the use of herbicides.
Composting. The stockpiling and composting of stumps, trees, brush, limbs, and similar biodegradable materials originating on the Premises, provided that such stockpiling and composting
is in locations where the presence of such activities will not impair the conservation values (including scenic values) of this Conservation Restriction. No such activities will take
place closer than one hundred (100) feet from any wetland, waterbody or stream. All exercise of this reserved right shall take into account sensitive areas and avoid harm to nesting
species during nesting season;
Wildlife Habitat Improvement. With the prior written approval of Granteewhich shall not be unreasonably withheld for any project making habitat improvements, and which determination
shall be made within 60 days, measures designed to restore native biotic communities, or to maintain, enhance or restore wildlife, wildlife habitat, or rare or endangered species including
regrading, andvegetation management, including planting or removal;
Archaeological Investigations.The right to conduct archaeological activities, including without limitation archaeological research, surveys, excavation and artifact retrieval, but only
(a) after written notification to and approval by Grantee, and (b) in accordance with an archaeological field investigation plan prepared by or on behalf of the Grantor and approved
in advance of such activity, in writing, by the Massachusetts Historic Commission (“MHC”) State Archaeologist as required by Massachusetts General Laws. A copy of the results of any
scientific investigation on the Premises is to be provided to the Grantee. Plans for restoration of the site of any archaeological activity shall be submitted to the Grantee in advance
of restoration, and such restoration shall be conducted only in accordance with a plan approved by the Grantee.
Activities detrimental to archeological and historic resources, including but not limited to earth moving and the alteration of historic stone walls/cellar holes/features, shall not
be deemed to be detrimental to archeological and historic resources if a description of the proposed activity and its location is submitted in writing (e.g., on a Project Notification
Form) with a plan of land (or assessors map) and a USGS map with the Premises outlined thereon, to MHC and MHC issues a letter stating that the proposed activity is not within a resource
area or is determined to not have an adverse effect on said resources. Grantor and Grantee shall make every reasonable effort to prohibit any person from conducting archaeological field
investigation on the Premises, including metal detecting, digging, or artifact collecting, without approval of the MHC State Archaeologist (or appropriate successor official), and shall
promptly report any such prohibited activity to the MHC State Archaeologist (or appropriate successor official). Grantor and Grantee shall include the prohibition against digging, artifact
collecting, or metal detecting in any list of rules for visitors to the Premises
Trails. The marking, clearing and maintenance of existing trails as shown in the Baseline Report.The construction of new unpaved trails or the relocation or alteration of existing trails,
provided that any construction, relocation, or alteration results in unpaved trailsthat are no wider than 6 feet. Associated boardwalks and footbridges may also be constructed with
prior notice to the Grantee;
Multiuse Trail.Following prior written approval of theGrantee, the construction, maintenance and use of a multiuse trail, which may be paved (“Multiuse Trail”), to connect to the New
Haven and Northampton Canal Line/Manhan Rail Trail abutting the Premises. The Multiuse Trail may be up to twelve (12) feet in width, and may be used by pedestrians and human-powered
recreational vehicles such as bicycles;
Signs. The erection, maintenance and replacement of signs with respect to trespass, hunting, trail access, identity and address of the occupants, sale of the Premises, the Grantee's
interest in the Premises, any gift, grant, or other applicable source of support for the conservation of the Premises, and the protected conservation values;
Outdoor Passive Recreational Activities. Hiking, cross-country skiing, nature study, and other non-motorized outdoor recreational activities that do not materially alter the landscape,
do not degrade environmental quality, and do not involve more than minimal use for commercial recreational activities;
Dam.The general maintenance, repair, andthe removal, of the existing dam on the Premises as documented in the Baseline Report.It is the intention of the parties that the dam be removedin
accordance withSection II.B.(13) below.
Pump House.The right to use, maintain, and demolish, the existing pump houseas shown in the Baseline Report. The pump house shall not be expanded beyond its existing footprint.
Forest Management.
Permitted Activities. Conducting sound silvicultural uses of the Premises that maintain or improve the health of the forest, including the right to commercially harvest forest products
(as such term may be defined from time to time in Section 1 of Chapter 61 of the Massachusetts General Laws, or successor law) or conduct other forest management activities that maintain
or improve the health of the forest, and the establishment of new woods roads, and the limited use of motorized vehicles necessary to conduct such activities (hereinafter, “Forestry
Activities”), provided that any such Forestry Activities are carried out pursuant to a Forest Management or Stewardship Plan (hereinafter the “Forestry Plan”). All Forestry Activities
shall avoid any stone structures or historical and cultural resources and shall be reasonably required to prevent any damage thereto. All cutting operations shall be supervised by a
licensed forester.
Requirement of a Forestry Plan. Before any Forestry Activities occur on the Premises, Grantor shall submit a Forestry Plan to the Grantee, the Massachusetts Department of Conservation
and Recreation (hereinafter, “DCR”) or appropriate successor agency, and to any other required state agencies for their approval. The Forestry Plan shall:
be prepared by a forester licensed through DCR and shall follow the “Directions for the Preparation of the Chapter 61 Forest Management Plans and Forest Stewardship Plans” (as such guidelines
may be amended by DCR or its successor agency) and such statutes, regulations and directions in effect at the time of the approval of said Forestry Plan; and
include provisions designed to comply with the recommended activities and guidelines and required best management practices established in the Massachusetts Forestry Best Management
Practices Manual (Catanzaro, Fish & Kittredge, University of Massachusetts, Amherst & DCR; 2013) and subsequent versions as may be approved by the Forestry Bureau (hereinafter the “Forestry
BMPs”); and
include a certification that the Forestry Plan complies with the terms of this Conservation Restriction; and
be effective for a ten (10) year period and shall be resubmitted once every ten (10) years as necessary if additional Forestry Activities are desired.
Ecosystem Restoration.The right to restore the natural functions of the Premises according to a Restoration Plan prepared by and agreed to in writing by the Grantor and the Grantee.
Copies of the Restoration Plan and any updates thereto shall be kept on file at the offices of both the Grantor and Grantee. The parties intend to restore the Premises from its design
and use as a golf course to a natural area, including reestablishment of a natural stream channel for the NashawannuckBrook, riparian wetland creation, dam removal, and significant reforestation.
Community Gardens, Incubator Farming, or Farming with Other Community Benefits. On no more than five (5) acres in a location along the Old Wilson Road frontage of the Premises that
shall be approved by the Grantee, the creation and maintenance of community garden plots, incubator farming areas, or other gardening or farming plots with other community benefits.
For the purposes of this paragraph, “incubator farming areas” shall be defined as those areas that provide new and beginning farmers opportunities to establish their own successful
local agricultural businesses by providing specific resources and services that are difficult for start-up entrepreneurs to access on their own, with a goal of minimizing barriers to
entry for aspiring and beginning farmers. It shall be permissible to construct fences around said gardens that are wildlife-impervious, for the purposes of protecting garden plots from
consumption by wildlife. The Grantor and Grantee have pre-approved no more than five acres of farmland as not materially impairing the conservation values.
Permits, Regulations, Laws.The exercise of any right reserved by Grantor under this Section II(B) shall be in compliance with zoning, the Wetlands Protection Act, and all other applicable
federal, state and local laws, rules, regulations, and permits. The inclusion of any reserved right requiring a permit from a public agency does not imply that the Grantee or the Commonwealth
takes any position whether such permit should be issued.
Best Management Practices.The exercise of any right reserved by Grantor under this Section II(B) shall follow established, up to date, and regionally-applicable Best Management Practices
or similar standards developed by a governmental agency or other entity with known expertise in the area of practice and designed to protect the natural features potentially affected
by the action(s).
Site Restoration. Any work undertaken in conjunction with the Reserved Rights described in this Section II(B) shall seek to minimize disturbance to the conservation values and other
natural features within the Premises.
Notice and Approval.
Whenever notice to or approval by Grantee is required, Grantor shall notify Grantee, by a method requiring proof of receipt, in writing not less than 60 days prior to the date Grantor
intends to undertake the activity in question. The notice shall describe the nature, scope, design, location, timetable and 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 of this Conservation Restriction. Where Grantee’s approval is required, Grantee shall
grant or withhold approval in writing within 60 days of receipt of Grantor’s request. Grantee’s approval shall not be unreasonably withheld, but shall only be granted upon a showing
that the proposed activity shall not impair the purposes of this Conservation Restriction.
Subject to any applicable law or regulation, failure of Grantee to respond in writing within 60 days shall be deemed to constitute approval by Grantee of the request as submitted, so
long as the request sets forth the provisions of this section relating to deemed approval after 60 days in the notice, the requested activity is not prohibited herein, and the activity
will not impair the conservation values or purposes of this Conservation Restriction.
LEGAL REMEDIES OF THE GRANTEE
Legal and Injunctive Relief.
The rights hereby granted shall include the right to enforce this Conservation Restriction by appropriate legal proceedings and to obtain injunctive and other equitable relief against
any violations, including, without limitation, relief requiring restoration of the Premises to their condition prior to the time of the injury complained of (it being agreed that the
Grantee will have no adequate remedy at law). 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. Grantee agrees to cooperate for a reasonable period of time prior to resorting to legal means in resolving issues concerning violations
provided Grantor ceases objectionable actions and Grantee determines there is no ongoing diminution of the conservation values of the Conservation Restriction.
Grantor covenants and agrees to reimburse to Grantee all reasonable costs and expenses (including reasonable counsel fees) incurred in enforcing this Conservation Restriction or in taking
reasonable measures to remedy, abate or correct any violation thereof, provided that a violation of this Conservation Restriction is acknowledged by Grantor or determined by a court
of competent jurisdiction to have occurred. In the event of a dispute over the boundaries of the Conservation Restriction, Grantor shall pay for a survey and to have the boundaries permanently
marked.
Non-Waiver.
Enforcement of the terms of this Conservation Restriction shall be at the 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.
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.
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 causes beyond the Grantor’s control, including but not limited to fire, flood, storm 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.
E. Third Party Impairment
In the event that a third party violates this Conservation Restriction or otherwise impairs the conservation values on the Premises, both Grantor and Grantee shall have the right, either
jointly or singly to compel restoration and/or to seek damages from the third party responsible for the violation or impairment. If Grantee acts unilaterally it shall not proceed against
Grantor for any third-party impairment or violation as long as (1) Grantor has not and does not affirmatively encourage such third-party violation or impairment and (2) Grantor has taken
and takes reasonable management steps to prevent trespass on the Premises. In such a case, Grantor shall be held harmless from any liability and legal costs arising from such remedial
pursuits by Grantee. If Grantor and Grantee take such remedial action jointly, they shall cooperate in seeking enforcement and shall coordinate their enforcement activities to the extent
practical. If either Grantee or Grantor takes unilateral action under this paragraph, the party taking such action shall notify the other party prior to taking such unilateral action.
ACCESSTo the Grantee.The Grantor hereby grants to the Grantee, or 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. The Grantor also grants to the Grantee, after notice of a
violation and failure of the Grantor to cure said violation, the right to enter the Premises for the purpose of taking any and all actions with respect to the Premises as may be necessary
or appropriate to remedy or abate any violation hereof, including but not limited to the right to perform a survey of boundary lines.The Grantor hereby grants to the Grantee the right,
but not the obligation, to treat invasive plants, non-native plants, and poison ivy, mechanically or chemically, in accordance with best management practices then in effect. Further,
the Grantor hereby grants to the Grantee the right, but not the obligation, to implement the Restoration Plan and to manage the Premises for the promotion of early successional habitat
in areas agreed upon by both the Grantor and the Grantee.To the General Public.The Grantorgrants access to the Premises to the general public and agrees to take no action to prohibit,
discourage, or charge a fee for access to and use of the Premises by the general public, but only for daytime use and only as described in Section II(B)(9) 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 of this Conservation Restriction. Grantor has the right to control, limit, or prohibit by posting and other reasonable means activities or uses
of the Premises not authorized in Section II(B)(9). The Grantor’s right to grant public access across the Premises is subject to the restrictions described in this Conservation Restriction.
Any public use which is permitted by the terms of this Conservation Restriction constitutes permission to use the Premises for purposes described in the Massachusetts General Laws Chapter
21, Section 17C and the Grantor and Grantee hereto benefit from exculpation from liability to the extent provided in such section. The Grantee may require the Grantor to post the Premises
against any use that may result in rutting or erosion or other damage to the natural resources of the Premises.
EXTINGUISHMENT
If circumstances arise in the future such as render the purpose of this Conservation Restriction impossible to accomplish, this restriction can only be terminated or extinguished, whether
in whole or in part, by a court of competent jurisdiction under applicable law after review and approval by the Massachusetts Secretary of Energy and Environmental Affairs. If any change
in conditions ever gives rise to extinguishment or other release of the 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 Section V(B), 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. Grantee shall use its share of the proceeds in a manner consistent with the conservation
purpose set forth herein.
Proceeds. Grantor and Grantee agree that the donation 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 bears to the value of the unrestricted property. Such proportionate value of the Grantee’s property
right shall remain constant. Any proceeds will be distributed only after complying with the terms of any gift, grant, or other funding requirements includingthe Land Grant Project Agreement
and the CPA.
Grantor/Grantee 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 Section V(B), after complying with the terms of any law, gift, grant, or funding requirements. 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 the proceeds like a continuing trust in a manner consistent with the conservation purposes of this grant.
DURATION & ASSIGNABILITY
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 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 their 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 Grantee, shall be in gross and shall not be assignable by the Grantee, except in the following
instances:
As a condition of any assignment, the Grantee shall require that the purpose of this Conservation Restriction continues to be carried out; that the Assignee is not an owner of the fee
in the Property, and the Assignee, at the time of the assignment, qualifies under Section 170(h) of the Internal Revenue Code of 1986, as amended, and applicable regulations thereunder,
and is a donee eligible to receive this Conservation Restriction under Section 32 of Chapter 184 of the General Laws of Massachusetts and has the administrative capacity to monitor and
enforce this Conservation Restriction in perpetuity. Any assignment will comply with Article 97 of the Amendments to the Constitution of the Commonwealth of Massachusetts, if applicable.
SUBSEQUENT TRANSFERS
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 thantwenty (20) days prior to the execution of such transfer. Failure to do any of the above shall not impair the validity
or enforceability of this Conservation Restriction. Any transfer will comply with Article 97 of the Amendments to the Constitution of the Commonwealth of Massachusetts, if applicable.
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.
ESTOPPEL CERTIFICATES
Upon request by the Grantor, the Grantee 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 Grantee agrees that it will not take title, to any part of the Premises without having first assigned this Conservation Restriction to a non-fee owner pursuant to the terms in Section
VI(C) toensure that merger does not occur and that this Conservation Restriction continues to be enforceable by a non-fee owner.
AMENDMENT
If circumstances arise under which an amendment to or modification of this Conservation Restriction would be appropriate, Grantor and Grantee may jointly amend this Conservation Restriction;
provided that no amendment shall be allowed that will affect the qualification of this Conservation Restriction or the status of Grantee under any applicable laws, including Section
170(h) of the Internal Revenue Code of 1986, as amended, or Sections 31-33 of Chapter 184 of the General laws of Massachusetts. Any amendments to this Conservation Restriction shall
occur only in exceptional circumstances. The Grantee will consider amendments only to correct an error or oversight, to clarify an ambiguity, or where there is a net gain in conservation
value. All expenses of all parties in considering and/or implementing an amendment shall be borne by the persons or entity seeking the amendment. Any amendment shall be consistent
with the purposes of this Conservation 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 Art. 97 of the Amendments to the Massachusetts Constitution, and any gifts, grants or funding requirements. Any amendment shall be recorded in theHampshire
CountyRegistry of Deeds.
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 General
Laws have been obtained, and it has been recorded in a timely manner in theHampshire County Registry of Deeds.
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:Conservation Commission, c/o Director of Planning & Sustainability
City of Northampton210 Main StreetNorthampton, MA 01060With copy to:City SolicitorCity of Northampton210 Main StreetNorthampton, MA 01060To Grantee:Director of Land ConservationMassachusetts
Audubon Society, Inc.
208 South Great RoadLincoln, MA, 01773
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 favor of the grant to effect the
purpose of this Conservation Restriction and the policy and purposes of Chapter 184, Sections 31, 32, and 33 of the Massachusetts General Laws. If any provision in this instrument is
found to be ambiguous, any interpretation consistent with the purpose of this Conservation Restriction 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 provision of this
Conservation Restriction shall not be affected thereby.
Entire Agreement. This instrument sets forth the entire agreement of the parties 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.
MISCELLANEOUS
Pre-existing Public Rights. Approval of this Conservation Restriction pursuant to Chapter 184, Section 32 of the Massachusetts General Laws by any municipal officials and by the Secretary
of Energy and Environmental Affairs 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.
Subordination. The Grantor shall record at the appropriate Registry of Deeds simultaneously with this Conservation Restriction all documents necessary to subordinate any 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.
Attached hereto and incorporated herein by reference are the following:
Attached hereto and incorporated herein are the following:Signature pages of:Grantor: Northampton Conservation CommissionGrantor: Mayor of City of NorthamptonGrantee: Massachusetts Audubon
SocietyApproval of Northampton City CouncilApproval of Secretary of Energy and Environmental Affairs
Exhibit A: Description of PremisesExhibit B: Survey of Premises
Exhibit C: City Council Vote of June 6th, 2019Executed under seal as of this _____ day of ______________, 2020.We, the undersigned, being a majority of the Conservation Commission of
the City of Northampton, Massachusetts, hereby certify that at a public meeting duly held on __________________2020, the Conservation Commission voted to approve and grant the foregoing
Conservation Restriction tothe Massachusetts Audubon Society, Inc., pursuant to Section 32 of Chapter 184 and Section 8C of Chapter 40 of the Massachusetts General Laws and in accordance
with Chapter 44B of the Massachusetts General Laws and the City Council Order attached as Exhibit C and do hereby grant the foregoing Conservation Restriction.Kevin Lake C. Mason MaronnJack
Finn Randy KrotowskiAlec BernsteinJason PerryElizabeth WroblickaCOMMONWEALTH OF MASSACHUSETTSHampshire, ss.On this __ day of __________, 2020, before me, the undersigned notary public,
personally appeared the above signed members of the Northampton Conservation Commission, proved to me through satisfactory evidence of identification which was personal knowledge, to
be the persons whose name is signed on the preceding document, and acknowledged to me that they signed it and voluntarily for its stated purpose.____________________________Sarah LaValley,
Notary Public My commission expires:
ACCEPTANCE OF CONSERVATION RESTRICTION
This Conservation Restriction from the City of Northampton acting by and through its Conservation Commission was accepted by the Massachusetts Audubon Society, Inc., this __________
day of , 2020.By: ______________________________________
Gary R. Clayton, PresidentBy: _____________________________Bancroft R. Poor, Assistant Treasurerand Chief Financial Officer
COMMONWEALTH OF MASSACHUSETTS
Middlesex, ss.On this ____ day of , 2020, before me, the undersigned notary public, personally appeared Gary R. Clayton, proved to me through satisfactory evidence of identification,
which was my personal knowledge of the principal’s identity, to be the person whose name is signed on the preceding document, and acknowledged to me that he signed it voluntarily for
its stated purpose as Presidentfor Massachusetts Audubon Society, Inc., a corporation.
________________________________
Notary Public
My Commission Expires:
COMMONWEALTH OF MASSACHUSETTS
Middlesex, ss.On this ____ day of , 2020, before me, the undersigned notary public, personally appeared Bancroft R. Poor, proved to me through satisfactory evidence of identification,
which was my personal knowledge of the principal’s identity, to be the person whose name is signed on the preceding document, and acknowledged to me that he signed it voluntarily for
its stated purpose as Chief Financial Officer and Assistant Treasurerfor Massachusetts Audubon Society, Inc., a corporation.
________________________________
Notary Public
My Commission Expires:Approval by Northampton City CouncilWe, the undersigned, being a majority of the City Council of the City of Northampton, Massachusetts, hereby certify that at
a meeting duly held on June 6, 2019, the City Council voted to approve the foregoing Conservation Restriction from the City of Northampton acting by and through its Conservation Commission
to the Massachusetts Audubon Society, Inc., in the public interest pursuant to Section 8C of Chapter 40 and Section 32 of Chapter 184 of the Massachusetts General Laws and hereby approves
of the foregoing Conservation Restriction in the public interest. _________________________________________________________________William Dwight (At-Large)John Thorpe (Ward 4)_________________________________________________________________Gina-Louise
Sciarra (At Large)Alex Jarrett (Ward 5)_________________________________________________________________Michael J. Quinlan (Ward 1)Marianne LaBarge (Ward 6)_________________________________________________________________Karen
Foster (Ward 2)Rachel Maiore (Ward 7)_________________________________Jim Nash (Ward 3)COMMONWEALTH OF MASSACHUSETTSHampshire, ss.On this ___ day of ______________, 2020, before me,
the undersigned notary public, personally appeared ________________________________________, proved to me through satisfactory evidence of identification which was personal knowledge,
to be the persons whose names are signed on the preceding document, and acknowledged to me that they signed it and voluntarily for its stated purpose.____________________________Wayne
M. Feiden, Notary Public My commission expires:
APPROVAL BY MAYOR OF NORTHAMPTON
The undersigned, the Mayor of the City of Northampton, hereby approves in the public interest the foregoing Conservation Restriction from the City of Northamptonacting by and through
its Conservation Commission to the Massachusetts Audubon Society, Inc. pursuant to Section 32 of Chapter 184 of the Massachusetts General Laws.
Dated: ________________, 2020DAVID NARKEWICZ
Mayor, the City of NorthamptonCOMMONWEALTH OF MASSACHUSETTSHampshire, ss.On this __ day of ______________, 2020, before me, the undersigned notary public, personally appeared Mayor David
J. Narkewicz, proved to me through satisfactory evidence of identification which was personal knowledge, to be the person whose name is signed on the preceding document, and acknowledged
to me that he signed it and voluntarily for its stated purpose.____________________________Wayne M. Feiden, Notary Public My commission expires:
APPROVAL BY SECRETARY OF ENERGY AND ENVIRONMENTAL AFFAIRS
COMMONWEALTH OF MASSACHUSETTS
The undersigned, Secretary of Energy and Environmental Affairs of the Commonwealth of Massachusetts, hereby certifies that the foregoing Conservation Restriction from the City of Northampton
acting by and through its Conservation Commission to the Massachusetts Audubon Society, Inc. has been approved in the public interest pursuant to Section 32 of Chapter 184 of the Massachusetts
General Laws.
Dated: ________________, 2020Kathleen A. Theoharides
Secretary of Energy and Environmental Affairs
COMMONWEALTH OF MASSACHUSETTS
SUFFOLK, ss:
On this day of , 2020, before me, the undersigned notary public, personally appeared Kathleen A. Theoharides, 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
Legal Description of Premises
The Premises subject to this Conservation Restriction is a parcel of land located in the City of Northampton, Hampshire County, Commonwealth of Massachusetts, containing a total of 105.36
acres, shown as ‘Pine Grove G.C. (Remainder) To Be Conveyed To The City Of Northampton’ on a plan of land entitled “City of Northampton, Rocky Hill Greenway Parcel Map”, prepared by
the Berkshire Design Group and stamped by David R. Enberg, said plan recorded at the Hampshire County Registry of Deeds, Plan Book 246, page 100.
Street Address: Old Wilson Road
EXHIBIT B - Reduced Copy ofSurveyPlan of the Premises (Sheet 1)
EXHIBIT B - Reduced Copy of SurveyPlan of the Premises (Sheet 2)
EXHIBIT B - Reduced Copy of SurveyPlan of the Premises (Sheet 3)
EXHIBIT C - CITY COUNCILVOTE