37-065 (14) Ir1PoL' e40 37— 0 Uc-C
P-Rat OF,
CORRECTI__GR1NT OF MULTI USE TRAIL
E*SNIENt-AND WATER EASEMENT
- a
The undersigned, TOFINO ASSOCIATES, INC., a corporation registered to do business
in Massachusetts,of 31 Campus Plaza Road, Hadley, MA 01035 ("Grantor"),
in consideration of One Dollar ($1.00), the receipt of which is hereby acknowledged,
hereby grants to the CITY OF NORTHAMPTON, City Hall, 210 Main Street,
Northampton, Massachusetts 01060, and its successors and assigns ("Grantee")
WITH QUITCLAIM COVENANTS,
BIKE PATH EASEMENT
1. A non-exclusive easement for the benefit of the public to pass and repass
over the "8' wide Bike & Pedestrian Path Easement" as shown on a plan of land entitled
"Definitive Subdivision Rocky Hill Co-Housing, Northampton, Massachusetts, Prepared
for Tofino Associates, Inc.", dated July 14, 2003, Rev. August 7, 2003, Rev. Sept. 25,
2003, Rev. Oct. 9, 2003, Planning Board Set July 20, 2004, and recorded with the
Hampshire County Registry of Deeds at Plan Book 202, Pages 1-12 (the "Subdivision
Plan") on foot or with non-motorized vehicles other than maintenance vehicles and
motorized wheelchairs (Multi Use Trail). "Personal assistive mobility devices" and other
motorized vehicles shall not be permitted in the said Bike & Pedestrian Path Easement
Area. The paved portion of the Multi Use Trail shall not exceed 8' in width and shall be
located as nearly as possible in the center of the said Bike Path Easement Area.
2. The Grantor will install the 8' wide Multi Use Trail Easement in accordance
with the Plans and requirements established by the City of Northampton Office of
Planning and Development. The portions of the Multi Use Trail as are located within the
parking areas, driveway, or building access trails of the Rocky Hill CoHousing
Development or within Black Birch Trail which will be maintained, including snow
clearance, repaired, and replaced as needed by Rocky Hill CoHousing Association.
The approximately 140 foot long portion of the Multi Use Trail located easterly of the
Rocky Hill CoHousing parking lot and building access trails, may be maintained,
repaired and/or replaced by the City of Northampton or Rocky Hill Cohousing Inc., but it
shall not be the responsibility of either to do so.
WATER EASEMENT
3. A non-exclusive Water Line Easement located along the easterly sideline of
the premises, being shown on the Subdivision Plan as "20'-Wide Water Line Easement
to Christ United Methodist Church," and the right to connect to the Grantor's Water Line
through the said Water Line Easement Area.
4. The City or its Assignee will be responsible for all costs of installation,
maintenance, repair and replacement of any water line installed in the said Water Line
Easement and shall hold the Grantor, and the Grantor's successors and assigns,
harmless from any damages to persons and property in connection with the installation,
maintenance, repair, replacement or use of said water line. The City or its Assignee
shall restore the property back to a level and safe condition once it has completed the
installation, repair, maintenance or replacement of said water line. The City has the
right to assign its rights under this section to neighboring property owners.
For Grantor's title to the land underlying the Multi Use Trail Easement and the
Water Line Easement, see the following deeds:
(a) from Suzanne Douville, Marie Orzel, and Michael Orzel to Tofino Associates,
inc., dated December 27, 2000, and recorded with said Registry at Book 6097, Page
217;
(b) from Corbin Chicoine and Jessica Chicoine to Tofino Associates, Inc., dated
July 30, 2001, and recorded with said Registry at Book 6307, Page 283;
(c) from Mary E. Cove to Tofino Associates, Inc., dated November 10, 2001, and
recorded with said Registry at Book 6450, Page 92; and
(d) from Joseph Singler and Amalie F. Singler to Tofino Associates, Inc., dated
August 7, 2003, and recorded with said Registry at Book 7382, Page 134.
For Grantor's rights to the Water Line, see an Agreement and Grant of Water
Easement, dated September 13, 2002, and recorded with said Registry at Book 7084,
Page 182, as amended or modified by agreement dated July 22, 2004 and recorded in
Book 7913, Page 250.
Note: This instrument corrects an incorrect document which is recorded with said
Registry at Book 8003, Page 254.
IN WITNESS WHEREOF Tofino Associates, Inc., has caused its corporate seal to be
affixed hereto and this instrument to be signed by Douglas A. Kohl, its President and
Treasurer, this ? day of 0C-kabQ.e' , 2004.
TOFINO ASSOCIATES, INC) Witness
By ...�, �� _
Doug s A. Kohl, its
Pres'.ent and Treasurer
COMMONWEALTH OF MASSACHUSETTS
HAMPSHIRE COUNTY, SS.
ACKNOWLEDGMENT
On this /�day, rr+
Y 1 }0Tn8GR � . 2004, before me, the undersigned notary public,
personally appeared Douglas A. Kohl, as President and Treasurer of Tofino Associates,
Inc., proved to me through satisfactory evidence of identification (which was my
personal knowledge as to his identity) to be the person whose name is signed on the
preceding or attached document, and acknowledged to me that he/she signed it
voluntarily for its stat-. purpose. r
ktb
Kimberly H. Gladding, Notary • blic
My commission expires April 3, 20.°.
e. ,
CONSERVATION RESTRICTION MB EASEMENT
t. GRANTOR CLAUSE:
The undersigned, TOFINO ASSOCIATES, INC., a corporation registered to do
business in Massachusetts, of 31 Campus Plaza Road, Hadley, MA 01035 ("Grantor"),
in consideration of One Dollar ($1.00), the receipt of which is hereby acknowledged,
acting pursuant to Sections 31, 32 and 33 of Chapter 184 of the General laws and
consistent with Article 97 of the Articles of Amendment to the Constitution of
Massachusetts, GRANT, WITH QUITCLAIM COVENANTS, to the CITY OF
NORTHAMPTON, City Hall, 210 Main Street, Northampton, Massachusetts 01060, and
its successors and permitted assigns ("Grantee") in perpetuity and exclusively for
conservation purposes the following described CONSERVATION RESTRICTION, to be
managed and controlled by the Northampton Conservation Commission, on a parcel of
land located in the City of Northampton, Hampshire County, Massachusetts described
in Exhibit A, attached hereto and made a part (the "Premises"),
For Grantor's title, see deed dated December 27, 2000 and recorded in the
Hampshire Registry of Deeds Book 6097, Page 217. See also deeds in Book 6307,
Page 283, and Book 6450, Page 92 and Book 7382, Page 134.
II. PURPOSES:
The Premises, contain unusual, unique or outstanding qualities the protection of
which in their predominately natural or open conditions will be of benefit to the public.
These qualities include:
A. A wildlife corridor and greenway connecting other property to enhance the
movement of flora and fauna along this valuable wildlife corridor.
B. A public right-of-way to allow pedestrian access to these properties for
passive recreation and enjoyment of wildlife on the bicycle trail shown on said
plan and to preserve a sight and sound buffer.
C. Compliance with a special permit and subdivision permit which require
open space preservation to create a denser livable neighborhood.
III. PROHIBITED ACTS AND USES, EXCEPTIONS THERETO, AND PERMITTED
USES:
A. Prohibited Acts and Uses. Subject to the exceptions set forth in paragraph
B below, the following acts and uses are prohibited on the Premises:
1. Constructing or placing of any building, tennis court, landing strip,
mobile home, swimming pool, fences, asphalt or concrete
pavement, except for 8 foot multi-use paved trail, sign,
billboard other advertising display, antenna, utility pole, tower,
conservation restriction reNeed.doe
conduit, line or other temporary or permanent structure or facility
on, below or above the Premises;
2. Mining, excavating, dredging or removing from the Premises of soil,
loam, peat, gravel, sand, rock or other mineral resource or natural
deposit;
3. Placing, filling, storing or dumping on the Premises of soil, refuse,
trash, vehicle bodies or parts, rubbish, debris, junk, waste or other
substance or material whatsoever or the installation of underground
storage tanks;
4. Cutting, removing or otherwise destroying trees, grasses or other
vegetation.
5. The subdivision of the Premises beyond that already described in
Exhibit A;
6. Activities detrimental to drainage, flood control, water conservation,
water quality, erosion control or soil conservation;
7. Any other uses of the Premises or activity which would materially
impair significant conservation interests unless necessary for the
protection of the conservation interests that are the subject of this
Conservation Restriction.
B. Exception to Otherwise Prohibited Acts and Uses. The following acts and
uses otherwise prohibited in subparagraph A are permitted on the
premises but only in a manner which seeks to minimize the negative
impact on the significant conservation interests which are the subject of
this Conservation Restriction:
1. Construction and installation of the utilities in the utility easements
(as shown on the a subdivision plan recorded at Plan Book 202,
Pages 1-12) located on Open Space, including access, clearing
and cutting in the area of said utility easements.
2. Construction and maintenance of walking and bicycle trails.
3. Selective cutting of trees and vegetation for fire protection and
forest management in accordance with a forest cutting plan or a
forest stewardship plan approved by the Grantee. Such approval
shall be at the sole discretion of the Grantee who shall make the
determination based on their determination of the need to preserve
vistas from the abutting conservation area and preserve wildlife
habitat and wetlands buffer. The Conservation Restriction area
conservation restriction revised doc
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must remain wooded and under no circumstances shall enough
trees be cut to create a lawn, except as otherwise provided herein.
4. Access, clearing, cutting, construction and maintenance of areas
used for agriculture, recreation fields, man-made pond and sledding
area for the benefit of the Unit Owners of Rocky Hill Co-Housing
Condominium and their guests in such Open Space areas that are
outside of the wetlands located on the premises.
5. Removal of diseased or storm damaged trees and vegetation.
6. Erection of informational signs related to the ownership of the
property and conservation restriction and use regulations for the
property.
7. The use of mechanical or chemical means for the purposes of
habitat management or the control of nuisance, noxious or invasive
plant or animal species with the approval of the Grantee.
IV. LEGAL REMEDIES OF THE GRANTEE:
A. 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 its condition prior to the time of the injury
complained of (it being agreed that the Grantee may have no adequate remedy
at law), and shall be in addition to, and not in limitation of, any other rights and
remedies available to the Grantee.
B. Reimbursement of Costs of Enforcement
The Grantor, and thereafter the owner of Lot 8, as shown on the said
Subdivision Plan, and its successors and assigns of the Grantor, covenant and
agree to reimburse the Grantee for all reasonable costs and expenses (including
without limitation counsel fees) incurred in enforcing this Conservation
Restriction or in remedying or abating any violation thereof.
C. Grantee Disclaimer of Liability
By its acceptance of this Conservation Restriction, the Grantee does not
undertake any liability or obligation relating to the condition of the Premises.
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conservation restriction Icvised.doc
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D. Severability Clause
If any provision of this Conservation Restriction shall to any extent be held
invalid, the remainder shall not be affected.
E. Non-Waiver
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.
V. ACCESS, PERMANENT EASEMENT, AND TEMPORARY CONSTRUCTION
EASEMENT
The Grantor grants to the Grantee and its representatives, but not the public, the
right to enter the Premises at reasonable times and in a reasonable manner for the
purpose of inspecting the same to determine compliance herewith.
The Grantor further grants to the Grantee, its inhabitants and the general public
an easement to pass and repass, on foot, by bicycle and by other non-motorized
vehicles, upon the above referenced Premises for the purposes of hiking and nature
study, provided that such right to pass shall be restricted to hardened earthen or other
trails or boardwalks located on the current bicycle trail as shown on the plan.
Grantor further grants to the Grantee, the right but not the obligation to clean up
and remove trash in the Premises.
VI. 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, including a leasehold
interest.
B. Execution of Instrument
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 themselves and their successors and assigns appoint the
Grantee their attorney-in-fact to execute, acknowledge and deliver any such
instruments on their behalf. Without limiting the foregoing, the Grantor and their
successors and assigns agree themselves to execute any such instruments upon
request.
conservation reSInCt/011 revised doe
C. Running of the Benefit
The benefits of this Conservation Restriction shall be in gross and shall not be
assignable by the Grantee, except in the following instances, and subject to
Article 97 of the amendments to the Massachusetts constitution, and from time to
time:
(i) as a condition of any assignment, the Grantee requires that the
purpose of this Conservation Restriction continue to be carried out, and
(ii) the assignee, at the time of assignment, qualifies under Section
170(h) of the Internal Revenue Code of 1986, as amended, and applicable
regulations thereunder, and under Section 32 of Chapter 184 of the General
Laws as an eligible donee to receive this Conservation Restriction directly; and
(iii) complies with Article 97 of the Amendments to the Massachusetts
Constitution.
VII. SUBSEQUENT TRANSFERS:
The Grantor agrees to incorporate by reference the terms of this Conservation
Restriction in any deed or other legal instrument by which they divest themselves of any
interest in all or a portion of the Premises.
VIII. RIGHTS OF PUBLIC CLAUSE:
Approval of this Conservation Restriction pursuant to M.G.L. Chapter 184,
Section 32 by any municipal officials and by the Secretary of 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.
IX. ESTOPPEL CERTIFICATES AND APPROVALS:
Upon request by the Grantor, the Grantee shall within twenty (20) days execute
and deliver to the Grantor any document, including written approvals and an estoppel
certificate, which certifies the Grantor's compliance with any obligation of the Grantor
contained in this Conservation Restriction.
X. 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, or if
consrrva'ion resmc tion rcvhed.d,x _.
registered land, it has been registered. Notwithstanding the foregoing, this Conservation
Restriction shall be effective as against the Grantor and any transferees of the Grantor,
upon signing by the Grantor.
XII. RECORDATION:
The Grantor shall record this instrument in timely fashion in the Hampshire County
Registry of Deeds.
IN WITNESS WHEREOF this day of Or-fok- , 2004.
WITNESS: TOFINO ASSOCIATES, INC.
41!! By
/j It esident
Its reasurer
COMMONWEALTH OF MASSACHUSETTS
HAMPSHIRE, SS ben:R,tt72004
On this day of , 2004, before me, the undersigned Notary
Public, personally appeared proved to
me through satisfactory evidence of notification, which was—"rls^sa, L -lc bnwr t r,Cc
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:
KIMULMy I I. CLADDING
CiftCOMMQNotary Public
chusetts
MY Commission Expires
April 3,2008
conservation restriction revised.doc
EXHIBIT A
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— 523'10'33'W — S2109331W 3200 m
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^� ee Sheet 2 of 2 for Descriptions and Area Information.
HUNTLEY ASSOCIATES, F.C. Plan of Land Under Conservation Restriction
Q 1nr. °r"e t` RockyHill CoHousin 3 * Northampton, MA
N9 m9 s 4M, u9sssen sere omen b P
(ala) 584-7444 • t'fl {413) 006-909 SCALE: N/A DATE' 10/04/2004 Sheet 1 of 2
EXHIBIT' A
Area Under Conservation Restriction Parini 8-CR3: Course: Distance:
'BA' N 76-50-34 E 199.06'
Courses and Distances for the 'BB' S 83-52-47 E 19583'
Conservation Restriction Royce's: 'BC' S 01-39-33 E 46,54'
'BD' N 86-41-38 W 111.49'
Parcel 8A: Course: Distance: 'SE' S 86-49-03 W 136.35
'w S 72-59-06 E 38.66' 'BF' S 69-42-45 W 66.00'
'X' Radius= 170.00' Arc= 87.94' 'BC S 50-45-39 W 61.02'
N 09-51-07 W 134.68' 'BH' N 21-26-55 W 9102'
'2' N 17-14-214E 61.31
3
'2' N - - Area: 22.580 Sq.Ft.± 0.5184 Acres*
S 17-14-21 W 6W 2022.00
8'
Area: 16,826 Sq.Ft.* 0.3883 Acresi Parcel 8-CR4: Course: Distance:
'Cd N 43-13-46 E 140.56'
'CB' N 23-34-14 W 126.13'
Parcel 8-CRI: Course: Distance: 'CC' S 67-00-56 E 919.27'
A' S 72-59-06 E 38.94' 'CO' S 21-09-33 W 56.18'
B' Radius= 230.00' Arc= 161.54' 'CE' N 68-20-00 W 17.69'
C' Radius= 190.00' Arc= 19981' 'CF' Radius= 160.27 Arc= 101.42'
D' S 45-33-57 W 83.90' 'CC' Rodkis= 110.96' Arc= 29.56'
C S 36-41-21 E 6934' 'CH' N 16-26-39 E 17.10'
F' N 53-38-44 E 8870' 'CI' N 67-00-56 W 153.96'
0' S 37-09-28 E 89.98' 'Cd N 78-54-47 E 128.40'
H' S 59-44-21 E 157.57 'CK' S 76-42-17 W 170.43'
r S 53-57-29 W 268.15' 'CC S 52-05-08 W 188.15'
S S 11-00-05 W 99,46' 'CM' N 57-05-24 W 155.13'
K' S 33-13-51 E 102.56' 'CN' N 31-35-48 W 81.72'
L' S 61-23-16 E 166.34' Are; 93,384 Sq.Ft.t 2.1438 Acresi
M' N 84-45-46 E 135.79'
N' N 54-03-51 E 234.48'
0' N 81-50-00 E 336.20'
P. N 21-09-33 E 137.19'
Cr N 16-26-39 W 164.19'
1k Radius= 111.33' Arc= 12.19'
S' Rodius= 168.38' Arcs 106.59'
T' S 68-20-00 E 17.73'
U' S 21-09-33 W 252.82'
AREA TOTALS:
S 26-10-33 W 523.07
S 34-15-11 W 235,61'
N 66-15-55 W 79024' 8A: 16.826 5q.Ft.* 0,3563 Acres*
N 16-33-34 E 511.50' 8-CR1: 587,150 Se.Ft.* 13,4791 Acresi
N 66-15-10 W 298.49' 8-CR2: 17,627 Sq.Ft.± 0.4047 Acres±
N 17-14-21 E 90.58' 8-CR3: 22,580 Sq.Ft.* 05184 Acres±
N 66-15-10 W 120,78' 8-CR4: 93,384 SwElt 21438 Acresi
BikePoth 12,219 Sq.Ft.± 0.3863 Acres*
N 17-14-21 E 100.63'
Area: 587,150 Sq.Ft,* 13.4791 Acresi TOTAL: 749,786 Sq.Ft.* 173186 Arrest
Minus Areo of Wetlands & Slopes over 8%
- 7.05 Acresi
Parcel&CR2: Course: Distance:
AA' N 53-25-04 E 339.82' ____----._
A8' S 57-11-41 E 70.64'
AC' S 22-05-51 E 15.95' Open Space Provided 10.2686 Acresi
AD' S 58-17-34 W 76.00'
AC N 83-05-48 W 53.03' Open Space Required 10.155 Acresi
Ar" 5 54-40-13 W 72.52'
AG' S 43-30-44 W 10629'
---..� AH' S 21-23-49 W 67.50'
„..< -. & N' N 38-14-DO W 83.98'
-. pAut , Area: 17,626 Sq.Ft.± 0.4047 Acres*
ft
,.-
�' if,
7 /} ,-p See Sheet 3 of 2 for Drawing.
c- Ic C/4^eo
. ..,
HUNTLEY ASSOCIATES, P.c. Plan of Land Under Conservation Restriction
30 InCuM dal Drive East
Nortamptoa, Massachusetts 01060 Rocky Hill Col-lousing * Northampton, MA
(a 6) 584-7444 • FAX (413) 386-9159 SCALE NAA DATE: 10/04/2004 She& 2 of 2
ACCEPTANCE BY CONSERVATION COMMISSION
The above Conservation Restriction and Easement is accepted this day of
, 2004.
C. Mason Maronn, Chair Michael Reed
Rueven Goldstein Matthew Nowak
John Body Susan Carbin
Wendy Sweetser
COMMONWEALTH OF MASSACHUSETTS
Hampshire, ss , 2004
9n this day of , 2004, before me, the undersigned Notary Public,
personally appeared
proved to me through satisfactory evidence of notification, 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:
-7-
conscrvauon restriction revised doc
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APPROVAL BY MAYOR
1, Mayor Mary Clare Higgins, Mayor of the City of Northampton, Massachusetts,
hereby approve the foregoing Conservation Restriction and Easement to the
Northampton Conservation Commission pursuant to M.G.L. Ch. 40, Section 8C.
Mayor Mary Clare Higgins
COMMONWEALTH OF MASSACHUSETTS
Hampshire, ss , 2004
On this day of , 2004, before me, the undersigned Notary
Public, personally appeared _ proved to
me through satisfactory evidence of notification, 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:
-8-
conservation restnction reviseddor
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APPROVAL BY CITY COUNCIL
We, the undersigned, being a majority of the City Council of the City of Northampton,
Massachusetts, hereby certify that at a meeting duly held on 2004, the City Council
voted to approve the foregoing Conservation Restriction and Easement to the
Northampton Conservation Commission pursuant to M.G.L. Ch. 40, Section 8C and
M.G.L. Ch. 184, Section 32.
Michael Bardsley James Dostal
William Dwight Paul Spector
Marilyn Richards Rita Bleiman
Alex Ghiseiin Marianne LaBarge
Raymond LaBarge
COMMONWEALTH OF MASSACHUSETTS
Hampshire, ss , 2004
On this day of , 2004, before me, the undersigned Notary Public,
personally appeared
proved to me through satisfactory evidence of notification, 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:
canservauon restriction rm9sed.doc
APPROVAL BY SECRETARY OF ENVIRONMENTAL AFFAIRS
COMMONWEALTH OF MASSACHUSETTS
The undersigned, Secretary of the Executive Office of Environmental Affairs of
the Commonwealth of Massachusetts, hereby certifies that the foregoing Conservation
Restriction and Easement to the Northampton Conservation Commission has been
approved in the public interest pursuant to M.G.L. Ch. 184, Section 32.
Date:
Secretary of Environmental Affairs
COMMONWEALTH OF MASSACHUSETTS
Hampshire, ss , 2004
On this day of , 2004, before me, the undersigned Notary Public,
personally appeared proved to me
through satisfactory evidence of notification, 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:
- iO.
conservation restriction tevisedninic
SUBORDINATION AGREEMENT
This SUBORDINATION AGREEMENT is made and entered into as of the _ _ day of
, 2004 by ("Mortgagee") in favor of the CITY OF NORTHAMPTON,
Massachusetts (the "City).
Reference is made to:
A. That certain Mortgage recorded with the Hampshire County Registry of
Deeds at Book , Page (the "Mortgage"), as such Mortgage may have been
amended prior hereto, granted by TOFINO ASSOCIATES, INC. regarding certain
premises located on in Northampton, Hampshire County, Massachusetts, more
particularly described in the Mortgage (the "Mortgaged Premises"),
That certain Conservation Restriction and Easement granted by TOFINO
ASSOCIATES, to the City, recorded or to be recorded simultaneously herewith with said
Deeds regarding a portion of the Mortgaged Premises (the "Easement").
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged. Mortgagee does hereby agree with and
for the benefit of the City that the Mortgage, and the lien of the Mortgage shall be
subject and subordinate to the Easement as if the Easement had been recorded prior in
time to the Mortgage.
IN WITNESS WHEREOF, this Subordination has been executed and delivered
as an instrument under seal as of the date first above written.
In the presence of: Mortgagee:
By_
Its
Duly authorized
By _.
Its
Duly authorized
COMMONWEALTH OF MASSACHUSETTS
ss , 2004
On this day of , 2004, before me, the undersigned Notary
Public, personally appeared proved to me
conservation resthcuon revived doe
•
through satisfactory evidence of notification, 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:
•
_13-
conservanov resmc too,evhcd-doc
MI pi 1, t imam
Bk:7976Pg:152 Page:1 of 1
Recorded: 09/07/2004 09:59 AM COVENANT--Form I
The undersigned Tofino Associates, Inc.of 31 Campus Plaza Road,Hadley,Massachusetts,hereinafter
called the"Covenantor",having submitted to the Northampton Planning board the Definitive Plan of a
--subdt4sis1dtl,Rocky Hill Cohousing Subdivision, dated July 14,2003, last revision dated July 20, 2004,
—does hereEcovenant to and agree with said Planning Board and the successors in office of said Board,
pursuag, Mass.General Laws,Chapter 41, Section 8113,as amended,that:
j?
Covenantor is the owner of record of the premises show on said plan; Lb, 20 Z.., 1'6,
2. ° s covenant shall run with the land on lot numbers 1 —SA and be binding upon the executors,
istcators,heirs,assigns of the Covenantor, and their successors in title to the premises shown
i c said plan.
31 construction of ways and the installation of municipal services shall be provided to serve any
to in accordance with the applicable Rules and Regulation of said Planning Board before such lot
I _ y be built upon or conveyed,other than by mortgage deed;provided that a mortgagee who
— - :—acquires title to the mortgaged premises by foreclosure or otherwise and any succeeding owner of
the mortgaged premises or part thereof may sell any such lot,subject only to that portion of this
Covenant which provides that no lot so sold shall be built upon until such ways and services have
been provided to serve such lot;
4. Nothing herein shall be deemed to prohibit a conveyance subject to this covenant by a single deed
of the entire parcel of land shown on the subdivision plan or of all lots not previously released by
the Planning Board without fust providing such ways and services;
5. This covenant shall take effect upon the approval of said plan;
6. Reference to this covenant shall be entered upon said plan and this covenant shall be recorded
when said plan is recorded.
H
EXECUTED as a sealed instrument this day of StLkr 2004.
TOFINO ASSOCIATES,INC.
•
BY
Dou A.Kohl
,,i�}y. Its resident and Treasurer
iness Signature
COMMONWEALTH OF MASSACHUSEI 1 S
HAMPSHIRE COUNTY, SS. •
ACKNOWLEDGMENT
i
On this day, eyf Q I_,2004,before me,the undersigned notary public,personally appeared
Douglas A.Kohl,president of Tofino Associates, Inc, and proved to me through satisfactory evidence of
identification(which was my personal knowledge as to his identity)to be the person whose name is signed
on the preceding or attached document,and acknowledged to me that he/she signed it voluntarily for its
stated pupose.
ery•t•
;miserly A. i.:a ' _, otary '1.
My commission expires April 3, 2009.
Planning Board - Decision Bk:7978Pg: 153 Page: 1 of 6 City of Northampton
Hearing No.: PLN-2004-0014 Recorded: 09/02/2004 09:59 AM Date:October 31,2003
APPLICATION TYPE: SUBMISSION DATE:
PS Special Permit with Major Site Pt 7129/2003
Applicants Name:
Owners Name: Surveyor's Name:
NAME: NAME: COMPANY NAME:
TOFINO ASSOCIATES TOF/NO ASSOCIATES INC HUNTLEYASSOCIATES PC
ADDRESS: A➢OW'SS A01ZRE55;
31 CAMPUS PI 674 RD 31 CAMPUS PLAZA DR 30 INDUSTRIAL DR EAST
TOWN: STATE: 21P CODE: TERM STATE: ZIP CODE TOWN: STATE ZIP COVE:
HADLEY MA 01035 HADLEY MA 01035 NORTHAMPTON MA , 01060
PHONE NO: FAX NO.: PHONE NO.: FANO: PHONENO: FAX NO.;
(413)2564321 (413)584.7444
EMAIL ADDRESS: EMAIL ADDRESS; EMAIL ADDRESS:
•
Site Information:
—^
STREET NO.: &MEONING:
FLORENCE RD SR
TOWN; SECTION OF BYLAW;
NORTHAMPTON MA 01060 Section}gQ50pen Space Residential Development
MAP: BLOCK: LOT: MPP DAZE ACTION TAKEN;
37 065 001 Approved With Conditions
Bock Papt: •
1537 075 -
NATURE OF PROPOSED WORK;
Open space cluster subdivision of 28 townhouse units and 5 single family units affecting map 37 parcels 65,66,67,19.
HARpSHIP;
CONDITION OF APPROVAL:
1.Prior to endorsement of the definitive plans,a performance guarantee that conforms to
Northampton Subdivision Rules and Regulations§6:06(4)must be posted. The developer may place
a covenant not to sell lots Or,in lieu of placing a covenant,post a Letter of Credit in accordance with
the standards in the Regulations. If a Letter of Credit is posted It must be in accordance with the
Regulations,two lots must still be covered by a covenant not to sell,must be adequate to cover the
costs of the city completing the project at prevailing wages and with a 15%inflation fade,and the
Letter may not be reduced below$100,000 until the project is complete and has been accepted as
^— '-"' such by the Planning Board.
r-�
2.
Covenants muststate that removal and maintenance'Aroads and sidewalks
-- throughout the sin,will be the responsibility of Homeowners'Association or adjoining gJ. t , - l Lot Owners,butin no case shalt it bethe
responsibility the City of Northampton-
-j -i 3.An$8,000 escrow account shall be established,in the Homeowner Association's name(appearing
l Fust)with a signature line for the City,prior to the rust lot sale as an assurance that the Homeowners'
w `I Association will perform their required capital improvements and maintenance. The City may draw on
this account If it determines that required capital improvements,maintenance,or inspections are not
-_,..�; being performed. The Homeowners'Association(HOA)is responsible to reimburse the City,within
- I three months for deposit into the escrow account for any funds the City spends from the account
-_Il The Permanent Covenants must clearly state that the Cl 'twill have a tight to place a lien on any or all
properties within the subdivision or shall provide some other equivalent,in the opinion of the
_- II
I Planning Board,level of protection for the city,in order to recover the cost of maintenance for
- ,' t
1 stormwater facilities.
d.Prior to the construction of the road, the applicant must record all covenants.
5.The permanent covenants must Include the stormwater management plan,as submitted in the
application and approved by the Office of Planning and Development
6. All drainage swales,stonnceptors,check dams,outlet structures, and rip rap basins shall be kept
clear of sediments and Inspected In the spring and in the fall.
7. Maintenance reports with documentation on the condition of all inspections and receipts of all
GeoTMS2)2003 Des Lauriers Municipal Solutions,Inc.
' Planning Board - Decision City of Northampton
Hearing No.: PLN-2004-0014 Date:October 31,2003
cleaning and work for all items specified in this permit condition shall be submitted to the Office of
Planning 8 Development annually,no later than November 1st of each year. Each report shall indicate
the status of each element of the entire system under the NOA's maintenance purview.
• B.Drainage easements wanted to the ROA must be shown on a revised plan with easement access to
the drainage spreaders must be addressed in homeowner association documents.
9. The drainage report showing that detention ponds are not needed should be signed by a
Massachusetts Registered Professional Engineer and submitted to the Office of Planning&
Development
10.If standing water collects at the Intersection of Florence Road and the new subdivision road,two
catch basins or other appropriate drainage structures must be installed to drain any pooling water in
accordance with'best management practices".
It.Prior to installation,subdrains for roadway construe lion must be reviewed and inspected by
Department of Public Works.
12.As presented by the applicant the proposed subdivision street will be privatelyowned and
maintained. Covenant documents must Include a statement that this road Is a private way and shall
not be petitioned to become a city right of way. This shaft be written as an inevocabie covenant
13.Covenants must Include an irrevocable provision that states that the subdvision sheet may never
be gated from public access.
14.As offered by the applicant and In partial consideration of traffic Impacts,prior to the issuance of
G—��? the first lding permit an easement shag 8'be recorded that grants to the City an wide Public
��.—% bikepath that extends from florence Road to the eastern boundary of the property. The easement shall
- i allow the public to pass and repass on non-motorized vehicles.
r;l I
o t r—. 15.As offered by the applicant and In partial consideration of traffic Impacts and waivers for the
_ az
i —I I" ' edgecreationoPodpertythe applicant shall build 400 Property
bituminous bikepath roper from the
(— _ edge of the property boundary that abuts the Pathways Property east across this property. Iran
si-%i J I=_=, easement IS not granted to the City of Northampton across the abutting property owned by Pathways
- c,I 1 „i Callousing,the applicant shag provide a kn.-In-lieu of traffic mitigation to the City of Northampton in
T 1 nn _ ` the amount of 664,000(the amount equal to the proportional cost of Improvements to the surrounding
n.cam t intersections where gereprior impacts are recorded,Including sidewalk improvements along the
fl 1 .,j Florence Road frontage.)prior to the issuance of the building permit for the 15th unit.
I 18.As offeredthe applicant and
f i! by pp prior to Issuance tofo the first building perMit,the design presented
J 1 to the Scanlon 10/23Affi of the bikepath from the eastern property boundary,across the Pathways
—._�J property,to the wetland crossing that abuts the Ice Pond Property shall be submitted to the Office of 1
Planning&Development This design shall be stamped by a Professional Engineer and submitted on
a mylar.
17.A street sign,in accordance with city standards,must be shown on the plan and placed on site
prior to the Issuance of the first building permit
18.Prior to Issuance of the first building penia a conservation restriction must be placed on the
open space portion of the property In accordance with SIPS of the Northampton Zoning Ordinance.
19.Except for maintenance vehicles and motorized wheelchairs,no motorized vehicles,Including
personal assistive mobility devices,shall be allowed on the off-road bicycle trait
20.Prior to Issuance of a building permit for any lots,signs must be posted by the developer
indicating the bicycle path access point at Florence Road,using a conservation area sign in
accordance with the standards for City of Northampton conservation areas.
. 21.Prior to connection of the water and sewer lines to the Pathways Cohousing project as-built plans
for the cross country lines on the Pathways property that show conformance with the city standards,
must be re),_Rrd and approved by DPW. Certification by DPW that the connection is allowed must be
submitted to the OMce of Planning i Development
22.All streets,utility,and other improvements must be made in accordance with Rules and
Regulations Governing Subdivisions in Northampton f-Regulations')except as hero in provided.
23.The water and sewer line shall be privately owned and maintained and shall be so stated in
covenants. Covenants shall be recorded prior to the final endorsement of the subdivision.
GeoTMS®2003 Des I-auriers Municipal Solutions,Inc.
•
•
•
Planning Board - Decision City of Northampton
Hearing No,: PLN-2004-0014 Date: October 31,2003
24,Prior to the issuance of the first building perm/& the applicant must provide a copy ofa recorded
easement for the City to connect water lines to the adjoining property to the Otice of Planning&
Development. This easement should generally be located from the eastern property boundary with
the Methodist Church(Map ID 37-30).
25. The applicant must connect a Twalve on the waterline to allow future connections from offsite.
The valve shall be placed within the easement granted to the City for future connections described in
condition 24 above.
2&Water connections from any housing unit to the main shall be installed at a 90-degree angle
wherever possible.
i�1
27.A backflow device shall be placed in the community building.
o ' 28.Rte flow tests shall be conducted and submitted to the DPW for the actual unit locations. Test
--._' y d results should show 1000 gpm can be achieved and 20 psi can be maintained.
w dG'.
29.All private utility easements,including those serving the single-family house lots shall be recorded
T' �� prior to issuance of the first building permit These documents shall indicate that maintenance is the
responsibility of the private owner or owner's association.
_c
30.Prior to issuance of a building permit brlots S-5,easements for the use and maintenance of
the private common driveway shall be recorded.Proof of recording shall be submitted to the Office of
7 i I Planning&Development
31.Final Plans must Show location Of utilities providing Sur cable N,Hectic,gas,phone,fiber optic,
etc.as required in the subdivision rules end regulations.
32.In accordance with 6:03(9,10),GPS control points must be identified. Vertical and horizontal,
control points must be certified bya surveyor to be accurate within one centimeter,prior to final
endorsement Monuments must be placed at these points.
33.All underground utilities must have warning tape installed a minimum of 3'above the pipes.
34.Prior to the Issuance of the first Certificate of Occupancy,one street light shall be located at the
intersection of Florence Road and the proposed new mad"Black Birch Trail't
The Northampton Planning Board unanimously GRANTED the request of Tofmo Associates,Inc.bra Special Permit with Site Plan(major
project)under the provisions of Sections 5.2,6.2,10.1&10.5 of the Northampton Zoning Ordinance for cluster development on a new
subdivision road including common driveway to be constructed and located as shown on the following plans and information submitted
with the application and as amended by any conditions attached to this permit
Unless otherwise noted,all plan sheets Identified below are prepared for Tofino Associates,Inc,prepared by The Berkshire Design
Group,Inc.
1.12ocky Hill Cohousing Definitive Subdivision Lot Layout,Northampton,Massachusetts'Sheet I of 1,dated August 6,2003 by Huntley
Associates,P.C.
2. 'Rocky MR Cohousing Definitive Subdivision Location Plan,Northampton.Massachusetts'Sheet 1 of 1,dated August 6,2003 by
Huntley Associates,P.G.
3."Rocky Hill Coheus/ng Overall Plan,Northampton,Massachusetts'Sheet LI,dated October 9,2003.
4. 'Rocky Hilt CohouSing Plan&Profile,Northampton,Massachusetts'sheet L2,dated October 9;2003.
5.'Rocky Hill Cohousing Layout Plan'Sheet L3,dated October 9,2003.
6.'Rocky Hill Cohousing Grading&Utilities Pian'Sheet L4,dated October 9,2003.
7. 'Rocky Hill Cohous/ng Site Details'Sheet L5.1-L5.4 dated October 9,2003.
8. 'Application for Approval of Definitive Subdivision Plan Rocky Hill Gohousing-dated June 26,2001
9. 'Application for Approval of Definitive Subdivision Plan Rocky Hill CohousIng ADDENDA'dated August 7,2003.
10. Stormwater Drainage Report dated October 22,2003 and October 9,2003.
S1.Letter'Responses to Department of Public Works"dated October 9,2003.
GeoTMSO 2003 Des Lauriers Municipal Solutions,Inc.
•
Planning Board - Decision City of Northampton
Hearing No.: PLN•2004-0014 Date:October 31,2003
In Granting the Special Permit with Site Plan(major project),the Planning Board found:
A.The requested use,for cluster development including a common driveway protects adjoining premises against seriously detrimental
uses because the proposed residential use is consistent with adjacent uses and will contain a buffer between the lots and the adjoining
premises. Theapplicant has made provisions for surface water drainage and has addressed traffic,bicycle and pedestrian access
issues as depicted on plans and information submitted with the application.
B. The requested use will promote the convenience and safety of vehicular and pedestrian movement within the site and on adjacent
streets,minimize traffic impacts on the streets and roads in the area because an 8'wide bicycle/pedestrian path with public access
easements will be constructed adjacent to the new road and will continue through the subdivision.
C. The requested use will promote a harmonious relationship of structures and open spaces to the natural landscape,existing buildings
and other community assets in the area through the design and location of the subdivision outside of the 100'wetland buffer. The units
will be surrounded by permanently protected open space.
D. The requested use will notoverload,and will mitigate adverse impacts on,the City's resources including the effect on the City's wafer
supply and distribution system,sanitary and storm sewage collection and treatment systems,fire protection,streets and schools
because the project has been designed In sono dance to the Northampton Subdivision regulations and special permit criteria for
storm water management
E. The requested use meets any special regulations set forth in Sections 5.2,6.2,10.18 10.5 including mitigation for traffic impacts to
surrounding intersections,preservation of open space with public benefits,
F. The requested use bears a posh/re relationship to the public convenience or welfare because the proposed development has
incorporated plans for a public pedestrian/bike trail and accessible curb ramps are proposed.
The use will not unduly impair the integrity or character of the district or adjoining zones,nor be detrimental to the health,morals,or
general welfare. The use shall be In harmony with the general purpose and intent of the Ordnance because the Open Space Residential
Development use is compatible with surrounding uses.
G. The requested use will promote City planning objectives to the extent possible and will not adversely effect those objectives,as
defined in City's Vision 2020 plan adopted under M.G.L Chapter 41,Section 87-C and D because the project will provide additional
residential units In a cluster while preserving valuable open space. The project will also connect neighborhoods through the provision of
bicyclelpedestrlan links from Florence Road.
In addition,in reviewing the Site Plan submitted,the Planning Boon!found that the application complied with the following technical
standards:
1. Curb cuts onto streets have been minimized to 2 curb cuts for S new single family homes onto the new subdivision road
2. Pedestrian,bicycle and vehicular traffic sepaiatcd on-site to the extentpossible. In conformance with the incremental traffic
mitigation,the applicant has offered to extend and construct 400'ofpublic bike path offsite and has submitted a design for the remaining
connection to the Ice Pond Property. •
COULD NOT DEROGATE BECAUSE
•
HUNG WAN INE MA/LING DATE HEARING CONTINUED DATE OEMS/ON BfPFT eY; APPEAL DATE:
9/4/2003 917812003 _ 11/6/2003
REFERRALS IN DATE: HEARING DEADLINE DATE: HFA-DING CLOSE DATE: FINAL SIGNING BY: APPEAL DEADLINE
9111/2003 10/212003 101132003 1023,2003 11/20/2003
FIRST ADVERTISING DATE: HEARING DATE: VOTING DATE: DECISION DATE:
9/11/2003 925/2003 10232003 10/31/T003
SECOND ADVERTISING GATE: HEARING TIME: VOTING DEADLNE DECISION resra NAE:
9/18/2003 7:00 PM 12131/2003 12/31/2003
MEMBERS PRESENT: VOTE: ,'l nC It' I ._
Paul Voss votes to Grant i 1 ' L L
I t-1./ i� I.j i
Francis Johnson votes to Gnat ;I w.�'� ;
George Kohout votes to Grant li LI OCT 31
Keith Wilson votes to Grant
Kenneth Jodrte votes to Grant 3.Mt n -r rpm
MOT>arMADE EY. SECONDED Bv: VOTE COUNT. .--.—___OcrASION:- ---
Keith Wilson Francis Johnsen 5 Approved with Conditions
MINUTES OF MEETING:
Available in the Office of Planning&Development
GeoTMS92003 Des Couriers Municipal Solutions,Inc.
Planning Board -Decision City of Northampton
Hearing No.: PLN-2004.0014 Date:October 31,2003
•
t,Carolyn Misch,as agent to the Planning Board,certify that this is a true and accurate decision made by the Planning Board and certify
that a copy of this and all plans have been Pled with the Board and the City Clerk on
October31,2003
t certifythat a copy of this decision has been mailed to the Owner and Applicant
Jr it
1Ei3
CITY CLERKS OFFICE
NORTHAMPTON MA 01060
November 21, 2003
I, Wendy Mazza, City Clerk of the City of Northampton, hereby certify that the above
Decision of the Northampton Planning Board was filed in the Office of the City Clerk
on October 31, 2003, that twenty days have elapsed since such 641 (411.51""—#that no appeal
has been filed in this matter. �f� V j '�(jtlt�j�
ATTEST: y " " 71t71""—#
City Clerk
City of Northampton
GeoTMS®2003 Des Lauriers Municipal Solutions,Inc.
...:7•1:17,‘"23:".1:‘PLANNING AND DEVELOPMENT • art OE NORTHAMPTON
- , Y Ciky Hair- 210 Main Street Room t l • Nonbompton,MA o t oba-9198-Egi 05874166•For 587-1164
Wayne Eeiden, Director pia nning@nmtbampmnp(anning,urg • row%nan(amptonp(axning.org
scriveners Error and Correction
Please note a correction of scriveners error on the Special Permit Decision
for Tofino Associates, Florence Road Map ID 37-19,65,66,67. Known as Rocky
Hill Cohousing Cluster Subdivision.
The Board approved the following under "Nature of Proposed work":
Open space cluster subdivision of 28 townhouse units and 7 single family
units affecting map 37 parcels 65, 66, 67, 19.
Corrected from: "Open space cluster subdivision of 28 townhouse units
and S single family units affecting map 37 parcels 65, 66, 67, 19.5 units."
ri —
Lai. �1n(A. mak. 11 !i Ir (10 L I i�:
Carolyn S. Misch IFJH Y
Senior Land Use Planner/Permits Manager d NOV 2 4 2003 i .:f
November 24, 2003
CID CLE(iFS OFFICE
• Ngoggni -N!t WA 91060
•
•
planning board-conservation commission-zoning board of appeals-bansingpartnersbip.redevelopment axtbority-nortbampton GIs
economic development•community development-historic district commission bi$tarica(commision central Susinessmcbitecture
;: ,iyp
Bk:79782g: 15S Page:1 of 12
Recorded: 0910212004 09:59 AM
DECLARATION OF COVENANTS AND
RESTRICTIONS, EASEMENTS, AND
MAINTENANCE AGREEMENTS
This Declaration is made this �sday of y g ,,�C
iv_ r-, 2004, by Tofino
Associates, inc. ("Torino"). Tofino is the owner of L is 1 - 8A (collectively, the
"Lots") and the "Right-of-Way Parcel" (a private subdivision road hereinafter
referred to as "Black Birch Trail"), all as shown on a plan of land entitled
"Definitive Subdivision Rocky Hill Co-Housing, Northampton, Massachusetts,
Prepared for Tofino Associates, Inc.", dated July 14, 2003, Rev. August 7, 2003,
Rev. Sept. 25, 2003, Rev. Oct. 9, 2003, Planning Board Set July 20, 2004, and
recorded with the Hampshire County Registry of Deeds at Plan Book yrn,,
Pages I (the "Subdivision Plan").
For Tofino's ownership of the premises, see the following deeds: (a) from
Suzanne Douville, Marie Orzel, and Michael Orzel to Tofino Associates, Inc.,
dated December 27, 2000, and recorded with said Registry at Book 6097, Page
217; (b) from Corbin Chicoine and Jessica Chicoine to Tofino Associates, Inc.,
dated July 30, 2001, and recorded with said Registry at Book 6307, Page 283;
(c) from Mary E. Cove to Tofino Associates, Inc., dated November 10, 2001, and
recorded with said Registry at Book 6450, Page 92; and (d) from Joseph Singler
and Amelia F. Singler to Tofino Associates, Inc., dated August 7, 2003, and
recorded with said Registry at Book 7382, Page 134.
Tofino is also the owner of sewer and water easements granted in the
following instruments: an Agreement and Assignment of Sewer Easements,
dated October 21, 2001, and recorded with said Registry at Book 7084, Page
175; and an Agreement and Grant of Water Easement, dated September 13, •
2002, and recorded with said Registry at Book 7084, Page 182 (the "Sewer and 4
Water Easements") as amended or modified by agreement dated July 22, 2004
and recorded as aforesaid in Book 7913, Page 250, and as further amended or
modified from time to time.
WHEREAS Tofino intends to install an 8" sewer line and an 8" water line
in the locations shown on Sheets-L1, L2, L3 and L4 of the Subdivision Plans
approved by the City of Northampton Planning Board for Rocky Hill CoHousing
(the"Sewer and Water Lines") for the benefit of the Lots;
WHEREAS Tofino intends to convey the said Lots 8 and 8A and Black
Birch Trail to a CoHousing organization (the "CoHousing Organization") to be
used for the development of a CoHousing community and to separately convey
the said Lots 1 - 7 to be used for the construction of single-family homes; and
- i .
WHEREAS the Lots and Black Birch Trail are subject to a Decision of the
Northampton Planning Board, dated October 29, 2003, and recorded with said
Registry of Deeds at Book 19gy, Page lrg (the "Planning Board Decision");
and
WHEREAS Tofino wishes to establish access rights for Lots 1 - 5, to
provide for the on-going maintenance and repair of Black Birch Trail and the
Common Driveway serving Lots 1- 5, to establish rights to the Sewer and Water
Easements and the Sewer and Water Lines, to provide for the on-going
maintenance and repair of the Sewer and Water Lines, to establish utility and
other easements to meet the requirements of the Planning Board Decision, and
to establish other restrictions, covenants, rights, and obligations affecting the
Lots;
NOW, THEREFORE, Tofino does hereby declare that the following
provisions shall encumber and/or benefit the Lots, Black Birch Trail, the Sewer
and Water Easements, and the Sewer and Water Lines:
EASEMENTS
1. The Owners of Lots 1 - 5, respectively, are hereby granted a non-
exclusive easement (in common with the Grantor, its successors and assigns,
and the CoHousing Organization, its successors and assigns) over (a) Black
Birch Trail and (b) "Easement Areas 2-1, 3-1, and 4-1" (which together comprise
the "Proposed Access and Utility Easement,"as shown on the Subdivision Plan),
between Florence Road and either end of the said "Proposed Access and Utility
Easement;" to pass and repass for residential purposes related to the use of
each of the said Lots; that is, for ingress and egress, by vehicle and by foot, by
the respective Owner of each Lot, and by said Owner's agents, contractors,
subcontractors, invitees, guests, and business visitors; and for the purpose of
installing, repairing, replacing, and maintaining utilities, including sewer, water,
storm drainage, electricity, telecommunications equipment, and any other such
utilities. All such utilities shall be installed below ground.
2. The Owners of Lot 6 are granted an easement over "20', Wide Utility
Easement 2-2" shown an said plan for the purpose of installing, repairing,
replacing and maintaining utilities, including sewer, water, storm drainage,
electricity, telecommunication equipment and any other such utilities. All such
utilities shall be'installed below ground. The Owner of Lot 6 shall be responsible
for returning the easement area to the condition it was in prior to any
maintenance, repair or replacement of such easement and shall hold the owners
of the lots on which such easement exist harmless from any damages in
connection with the use, maintenance, repair or replacement of such easement.
3. The Owners of Lot 7 are hereby granted an easement over "20' Wide
Utility Easement 8-1" as shown on said plan for the purpose of installing,
_z.
•
repairing,. replacing and maintaining utilities including sewer, water, electricity,
telecommunication equipment, and any other such utilities. AU such utilities shall
be installed below ground. The Owner of Lot 7 shall be responsible for returning
the easement area to the condition it was in prior to any maintenance, repair or
replacement and shall hold the owners of the lots harmless from any damages as
a result of such repair, maintenance or installation or use of such easement.
4. The Owners of Lots 1 - 6 are hereby granted an easement over
"Easement 5-1" and "20' Wide Utility Easement 8-2" as shown on the Subdivision
Plan for storm drainage and common foundation drainage including the
installation, repair, maintenance, and replacing all storm drainage facilities,
including pipes, catchbasins, drainage outfalls and retention or detention basins
or swales.
COMMON FOUNDATION DRAIN
5. Tofino shall be responsible for installing a common foundation drain to
serve Lots 1 - 6 (the "Common Foundation Drain") and hereby grants to the
Owners of Lots 1 - 6 an easement to use and the right to connect to the Common
Foundation Drain, if the Owner wishes to, for the benefit of the Owners Lot.
6. The Common Foundation Drain shalt be maintained, repaired,
constructed, and reconstructed at all times by the Owners of Lots 1 - 6 so as to
be in a high-functioning working order. Each of said Owners of Lots 1 - 6 shall
contribute one sixth (1/6)of the said costs; provided, however, that a Lot Owner
shall be obligated to contribute to such costs only after a foundation for a home
has been installed on the Lot and the drainage for that foundation has been
connected to the Common Foundation Drain.
•
7. The Owners of Lots 1 - 6 shall determine when, to what extent, and in
what manner, maintenance, repairs, reconstruction, and other work on the
Common Foundation Drain shall be conducted. All decisions shall be
determined by a majority vote of the Lots actually connected on a one-vote-per-
Lot basis.
8. If any of the Owners of Lots 1 - 6 has work done which necessitates
digging up the said Common Foundation Drain for the sole benefit of said Lot
Owner, then said Lot Owner shall be responsible for returning the Common
Foundation Drain to its original condition and paying for the cost thereof.
BLACK BIRCH TRAIL AND COMMON DRIVEWAY
9. The CoHousing Organization shall be solely responsible for: (a) the
costs of the initial installation and construction of Black Birch Trail within the said
"Right-of-Way Parcel", as approved by the City of Northampton Planning Board,
(b) the maintenance, repair, construction, and reconstruction of Black Birch Trail
-3-
at all times so as to maintain it in. a good and passable condition, including
without limitation, deicing, snow removal, and paving; (c) the maintenance,
repair, construction, and reconstruction of any sidewalks located within Black
Birch Trail at all times so as to maintain them in a good and passable condition,
including without limitation, deicing, snow removal, and paving; and (d)
establishing Rules and Regulations governing the speed and use of said Black
Birch Trail and said sidewalks, subject to any rights established in Paragraph 1,
above, and/or in a Grant of Multi Use Trail Easement and Water Easement, to be
recorded hereafter at the Hampshire County Registry of Deeds.
10. The Cohousing Organization shall be solely responsible for the costs
of the initial installation of the Common Driveway serving Lots 1 - 5 (the
"Common Driveway") to be installed in the said "Proposed Access and Utility
Easement."
11. The Common Driveway shall be maintained, repaired, constructed,
and reconstructed at all times by the Owners of Lots 1 - 5 so as to be in a good
and passable condition, including without limitation, graveling, snow removal,
deicing, and grading; and any grade of the said Common Driveway shall be
constructed and maintained with a surface of bituminous concrete. Each of said
Owners of Lots 1 - 5 shall contribute one fifth (1/5) of the said costs; provided,
however, that a Lot Owner shall be obligated to contribute to such costs only
after a foundation for a home has been installed on the Lot.
12. The Owners of Lots 1 - 5 shall meet a minimum of once each year to
review the condition of the Common Driveway. The Owners shall determine
when, to what extent, and in what manner, maintenance, repairs, reconstruction, 1
and other work on the Common Driveway shall be conducted. All decisions shall
be determined by a majority vote on a one-vote-per-Lot basis.
13. If any of the Owners of Lots 1 - 8A has work done which necessitates
digging up the said Common Driveway and/or Black Birch Trail for the sole
benefit of said Lot Owner, then said Lot Owner shall be responsible for returning
the Common Driveway and/or Black Birch Trail to its original condition and
paying for the cost thereof.
14. Black Birch Trail and the Common Driveway (and any related
sidewalks) and all easements granted herein shall remain private and the Lot
Owners covered by this Declaration shall not petition that the City of
Northampton take over the maintenance of Black Birch Trail and/or the said
Common Driveway or other easements (and/or any related sidewalks) and/or
layout Black Birch Trail and/or the Common Driveway as a public way Lots 1 - 5
shall only be accessed by way of Black Birch Trail and the Common Driveway.
The Lot Owners shall not install a gate to prevent public access to Black Birch
Trail.
-4-
SEWER AND WATER LINES
15. The Owners of Lots 1 - 7 and the CoHousing Association are hereby
granted the right to use the Sewer and Water Easements and to connect to the
Sewer and Water Lines; provided, however, that the CoHousing Organization
shall not make more than thirty (30) separate connections to the Sewer and
Water Lines.
16. If a building on one of the Lots is connected to the Sewer and/or
Water Lines, the Owner of said Lot shall contribute a proportional share of the
costs of inspecting, maintaining, repairing, and reconstructing the Sewer and
Water Lines, including making contributions to any reserve accounts established
by the CoHousing Organization. The CoHousing Organization's proportionate
share shall be the said costs divided by the total number of separate connections
to the Sewer and Water Lines multiplied by the number of Lot 8 and 8A separate
connections which are connected to the Sewer and Water Lines.
17. The CoHousing Organization shall be responsible for managing the
Sewer and Water Lines, including providing for periodic inspections, coordinating
any required maintenance, repair, and reconstruction over the lifetime of the
Sewer and Water Lines, and establishing any reserve accounts it reasonably
determines are necessary. The CoHousing Organization shall consult with the
Owners of Lots 1 -7 prior to making any decisions to assess any funds for such
inspections, maintenance, repair, and reconstruction of the Sewer and Water
Lines. The Owners of Lots 1 - 7 inclusive shall be responsible to maintain any
sewer and/or water service which serves their lots alone notwithstanding the
above. Tofino shall have the right to install all water and sewer service in the first
instance and all connections to said service for individual lots.
18. The inspection, maintenance, repair, and/or reconstruction of the
Sewer and Water Lines shall forever be the Cohousing Association's private
responsibility in accordance with the provisions of this Declaration; the City of
Northampton shall have no obligation whatsoever with respect to the inspection,
maintenance, repair, and/or reconstruction of the Sewer and Water Lines; and (c)
the Cohousing Association shall indemnify and hold the City of Northampton
harmless from any and all liability, expense, or cost of any kind with respect to
the inspection, maintenance, repair, and/or reconstruction of the Sewer and
Water Lines.
•
STORM WATER MANAGEMENT
19. The CoHousing Organization shall be responsible for all storm water
management associated with the Lots and Black Birch Trail in accordance with
the Storm Water Management Plan on file with the City of Northampton Planning
-5-
Board. The CoHousing Organization shall be responsible for full and timely
compliance with the Storm Water Management Plan, which shall include:
a. maintaining all storm water facilities (the"Stomr Water System");
b. causing street sweeping of Black Birch Trail, other traveled ways,
and all parking areas to be conducted by a qualified professional in the spring
and in the fall;
c, keeping all elements of the Storm Water System, such as the
drainage swales, check dams, outlet structures, and rip rap basins clear of
sediments and inspected by a qualified professional in the spring and in the fall;
and
d. submitting to the Office of Planning and Development annually,
no later than November 15th of each year: (1) maintenance reports with
documentation on the conditions revealed by all inspections and (2) receipts for
all cleaning and work for all items specified in the Storm Water Management
Plan. Each such report shall indicate the status of each element of the Storm
Water System covered by the Storm Water Management Plan.
20. Tofino hereby grants to the City of Northampton an easement to (a)
inspect the Storm Water System and (b) to perform specified maintenance
obligations of the CoHousing Organization if the City has notified the CoHousing
Organization in writing that specified maintenance obligations must be performed
by a date certain and the CoHousing Organization has failed to perform such
maintenance obligations by such date.
ESCROW ACCOUNT
21. The CoHousing Organization shall deposit $8,000.00 in an interest-
bearing Escrow Account to assure that the CoHousing Organization complies
fully with its obligations under the Planning Board Decision. The City of
Northampton (the "City") shall be a co-signer on the account. The funds in the
Escrow Account shall be owned by the CoHousing Organization and interest
thereon shall be payable to the CoHousing Organization.
22. If the City has notified the CoHousing Organization in writing that
specified maintenance obligations of the_CoHousing Organization under this
Declaration and the Planning Board Decision must be performed by a date
certain and the CoHousing Organization has failed to perform such maintenance
obligations by such date, the City may expend funds from the said Escrow
Account to perform the specified maintenance obligations. The City may
thereafter assess or bill the CoHousing Organization for such expenditure in
order to replenish and maintain the account at $8,000.00. The CoHousing
Organization shall have ninety (90) days to pay such an assessment and may
-6-
assess the Lot Owners for their proportionate share of such expenditure. If the
CoHousing Organization fails to pay or reimburse the City for the expenditure
within ninety (90) days, the City shall have standing and the right to file an action
against the Col-lousing Organization to enforce the assessment, including the
right to seek a prejudgment lien or other security for the enforcement of the
assessment.
ASSESSMENT COLLECTION PROCEDURES
23. The failure of any party to abide by the provisions of this Declaration
which affect the Common Driveway, the Sewer and Water Lines, and/or the
Common Foundation Drain shall not act to forfeit that party's rights under the
easements and rights granted above. However, if a Lot Owner of Lots 1 - 7 fails
to pay that Lot Owner's said proportionate share of the Sewer and Water Lines
assessments, or an Owner of Lots 1 - 5 fails to pay that Lot Owner's share of the
Common Driveway assessments or an Owner of Lots 1 — 7 fails to pay that Lot
Owner's share of the Common Foundation Drain assessments on the date when
due as stated in an assessment issued by the appropriate group of Lot Owners
or the CoHousing Organization, as applicable, then such assessment shall
become delinquent and shall, together with such interest thereon and the cost of
collection thereof, become a continuing lien on the property which shall bind such
property in the hands of the then owner(s) and his/her/its successors in record
title. The personal obligation of the then owner(s) to pay such assessment,
however, shall remain as his/her/its personal obligation and shall not pass to
hislher/its successors in record title unless expressly assumed by them.
24. If the delinquent assessment is not paid within thirty (30) days after
the due date, the assessment shall bear interest from the date of delinquency at
the rate of eighteen percent (18%) per annum, and the Owners of Lots 1 - 5, the
Owners of Lots 1 — 7, or the CoHousing Organization, as applicable, may bring
an action at law against the delinquent Lot Owner or other person personally
obligated to pay the same or to foreclose the lien against the property, and there
shall be added to the amount of such assessment the costs of preparing and
filing the complaint in such action, and in the event a judgment is obtained, such
judgment shall include interest on the assessment as above provided and a
reasonable attorney's fee to be fixed by the Court together with the costs of the
action.
25. The lien of the assessments provided for herein shall be subordinated
to the lien of any mortgage or mortgages now or hereafter placed upon the
properties subject to the assessment.
26. The lien provided for herein for payment of assessments may be
enforced by sale at public auction of the Lot Owner's premises in accordance
with the provisions of M.G.L. Chapter 183A and Chapter 254, Section 5A. The
recording of an affidavit of such sale together with a deed from the non-
delinquent Owners of Lots 1 - 5, the non-delinquent Owners of Lots 1 — 7, or the
CoHousing Organization, as applicable, to the purchaser(s) shall forever bar the
delinquent Lot Owner and his/herlits successors in title from all right and interest
in said Lot, at law or in equity. Similarly, as above, the lien sought to be
foreclosed shall include the aforesaid interest and legal costs and attorneys fees
incurred as a result of the foreclosure proceedings.
27. The Owners of Lots 1 — 5 shall establish and elect a Lot Owner to the
position of Treasurer with respect to the Common Driveway provisions of this
Declaration. Upon request, and within seven (7) days after such request, the
said Treasurer shall issue, in a form recordable with the said Registry of Deeds,
a Certificate indicating that a Lot Owner is current in the Lot Owner's payment of
assessments with respect to the Common Driveway or, if not, the amount which
is currently owed. The Owners of Lots 1 — 7 shall establish and elect a Lot
Owner to the position of Treasurer with respect to the Common Foundation Drain
provisions of this Declaration. Upon request, and within seven (7) days after
such request, the said Treasurer shall issue, in a form recordable with the said
Registry of Deeds, a Certificate indicating that a Lot Owner is current in the Lot
Owner's payment of assessments with respect to the Common Foundation Drain
or, ii not, the amount which is currently owed. Upon request, and within seven (7)
days after such request, the Treasurer of the Cohousing Organization shall issue,
in a form recordable with the said Registry of Deeds, a Certificate indicating that
a Lot Owner is current in the Lot Owner's payment of assessments with respect
to the Sewer and Water Lines or, if not, the amount which is currently owed.
MISCELLANEOUS PROVISIONS
28. The Lot Owners shall be responsible for maintaining all private
utility easements and private utility connections which serve the buildings on their
respective Lots.
29. Upon the completion of the cohousing condominium project on Lots
B and 8A, all of the rights and obligations of the CoHousing Organization under
this Declaration shall automatically pass to the association of unit owners of said
cohousing condominium.
30. The obligations of a Lot Owner under this Agreement shall continue
regardless of whether he or she resides on, or has built building(s) on, the
Owner's Lot.
31. In order to ensure the continued maintenance, repair, and
reconstruction of Black Birch Trail, the Common Driveway, the Sewer and Sewer
Lines, the Storm Water System, and the Common Foundation Drain, the rights
and obligations established by this Declaration shall run with the fee simple
ownership of the Lots and the Lots shall be conveyed together with and subject
to this Declaration, as amended from time to time.
8 _
•
•
32. The Owners of the Lots may modify any portion of this Declaration by
the unanimous agreement of the then current Lot Owners (with such
modifications to be in writing and recorded with said Registry of Deeds) so long
as such modifications do not:
a. materially interfere with: (i) the on-going maintenance of Black
Birth Trail and the Common Driveway in a good and passable condition, (ii) the
on-going maintenance of the Sewer and Water Lines in a good and fully-
functioning state, or (iii)the on-going maintenance of the Storm Water System in
a good and fully-functioning state; or
b. modify any provision of this Declaration which is required by the
Planning Board Decision including conditions 2 and 3 of the Special Permit
granted by the City of Northampton.
IN WITNESS WHEREOF Tofino Associates, Inc., has caused its corporate seal
to be affixed hereto and this instrument to besigned by Douglas A. Kohl, its
President and Treasurer, this�day of cy _bQr , 2004.
TOFINO ASSOCIATES, INC.
.at 1
111,11 By r�
Witness Downs A Kohl
its resident and Treasurer
COMMONWEALTH OF MASSACHUSETTS
HAMPSHIRE COUNTY, SS.
ACKNOWLEDGMENT
r
On this day, . =�reAGEQ I , 2004, before me, the undersigned notary
public, personally appeared Douglas A. Kohl, as President and Treasurer of
Tofino Associates, Inc., proved to me through satisfactory evidence of
identification (which was my personal knowledge as to his identity) to be the
person whose name is signed on the preceding or attached document, and
acknowledged to me that he/she signed it voluntarily for its stated purpose.
a
- t"_l'�'4
Kimberly H. Gladding, Notary Public
My commission expires-3 2009.
9-
Rocky Hill CoHousing May 28,2004
Northampton, Massachusetts
Proposed
Stormwater Management System
Operation & Maintenance Plan
During Construction
The Contractor shall be responsible for inspection and maintenance during
construction.
At all times, siltation fabric fencing, stakes and hay bales sufficient to construct a
sedimentation control bather a minimum of 50 feet long will be stockpiled on the
site in order to repair established barriers which may have been damaged or
breached.
An inspection of all erosion control and stormwater management systems shall be
conducted by the Contractor at least once a week and during all rain storms until
the completion of construction. In case of any noted breach or failure,the
Contractor shall immediately make appropriate repairs to any erosion control
system and notify the engineer of any problems involving stormwater
management systems.
A rain storm shall be defined as all or one of the following:
• Any storm in which rain is predicted to last for twelve consecutive hours or
more.
• Any storm for which a flash flood watch or warning is issued. _
• Any single storm predicted to have a cumulative rainfall of greater than one-
- half inch.
• Any storm not meeting the previous three thresholds but which would mark a
third consecutive day of measurable rainfall.
The Contractor shall also inspect the erosion control and stormwater management
systems at times of significant increase in surface water runoff due to rapid
thawing when the risk of failure of erosion control measures is significant.
In such instances as remedial action is necessary, the Contractor shall repair any
and all significant deficiencies in erosion control systems within two days:
The Conservation Commission shall be notified of any significant failure of
stormwater management systems and erosion and sediment control measures and
shall be notified of any release of pollutants to a water body (stream, brook, pond,
etc.).
Rocky Hill CoHousing May 28,2004
Northampton,Massachusetts
The Contractor shall remove the sediment from behind the fence of the
sedimentation control barrier when the accumulated sediment has reached one-,
half of the original installed height of the barrier.
Post-Construction
Storm water Management System Owner:
The Developer,
Tofino Associates,Inc.
31 Campus Plaza Road
Hadley, MA 01035
shall own the stormwater management system until such time that the Homeowners
Association is established.The City of Northampton Department of Public Works will
not be responsible for maintaining the roadway and/or stormwater management system.
Party Responsible for Operation &Maintenance:
The Developer,
Tofino Associates, Inc.
31 Campus Plaza Road
Hadley,MA 01035
shall be responsible for the stormwater management system until such time that the
Homeowners Association is established.The City of Northampton Department of Public
Works will not be responsible for maintaining the roadway and/or stormwater
management system.
Inspection &Maintenance Schedule:
1) Street Sweeping
Street and parking area sweeping shall take place 4 times a year to achieve 10%TSS.
• removal. '
2) Grassed Swales
Swales shall be mowed at least once per growing season to prevent establishment
of woody growth and other undesirable plants that inhibit proper performance.
Grass vegetation should not be cut shorter than 4". It is important not tp engage in
2
Rocky 11111 CoHousing May 28.2(104
Northampton,Massachusetts
excessive mowing operations, as this keeps the grass too short and decreases the
efficiency of the vegetation to reduce runoff borne sediments and velocities.
•
Sediment and debris shall be removed manually at least once per year before the
vegetation is adversely impacted.
3) Stormwater Treatment Chamber
The Stormwater Treatment System requires minimal routine maintenance;
• however, it is important that the system be properly inspected and cleaned when
necessary in order to function at its best. The rate at which the system collects
pollutants will depend more heavily on site activities than the size of the unit,e.g.
heavy winter sanding will cause the grit chamber to fill more quickly, but regular
sweeping will slow accumulation.The water quality treatment system shall
consist of Slormceptor or equal treatment chambers. For more detail of how the
Stonuceptor should be maintained see the S tormcepror Owner Manual,
4) " Catch Basins
Catch basins will be designed with deep sumps and will be cleaned semi-annually,
once in the spring and again in the fall,following defoliation.
5) All drainage swales, sten-inceptors,check dams,outlet structures, and rip rap
basins shall be kept clear of sediments and inspected in the spring and the fall.
Maintenance reports with documentation on the condition of all inspections and
receipts of all cleaning and work for all items specified in this permit condition
shall be submitted to the office of Planning and Development annually,no later
than November I a of each year.Each report shall indicate the status of each
element on the entire system under the HOA's maintenance purview.
3
EASEMENT
For valuable consideration of one dollar ($1.00), receipt and sufficiency of which is hereby
acknowledged, Tofino Associates, Inc., a Massachusetts corporation having an office in the Town
of Hadley, Hampshire County, Commonwealth of Massachusetts, (hereinafter referred to as the
"Grantor"), hereby grants unto VERIZON NEW ENGLAND, INC., a New York corporation
with a principal office in Massachusetts 185 Franklin Street, Boston, Massachusetts, its
successors or assigns, and COMCAST OF MASSACHUSETTS/VIRGINIA, INC. a Virginia
corporation, with its principal Massachusetts office located at 92 Glenn Street, Lawrence,
Massachusetts, its successors and assigns, (collectively hereinafter referred to as the "Grantee")
the perpetual right (a) to lay, construct, reconstruct, maintain, operate, replace and rebuild
underground transmission of communication and intelligence systems serving residential and
accessory structures within the Rocky Hill CoHousing Subdivision, in the City of Northampton,
Vdlage of Florence, in Hampshire County, Commonwealth of Massachusetts, in the approximate
locations shown on the sketch attached hereto; (b)to provide transmission of communication and
intelligence service by means of the said systems; (c) to enter said land for the purpose of
inspecting; maintaining or removing the said systems; and (d) the right to trim and keep trimmed,
cut and remove such shrubbery or trees as in the judgment of the Grantee are necessary to
maintain said systems.
The easement granted herein is over a portion of the property described in the following
deeds to the Grantor:
a. a deed from Suzanne Douville, Marie Orzel, and Michael Orzel to Tofino Associates,
Inc., dated December 27, 2000, and recorded with the Hampshire County Registry of deeds at
Book 6097, Page 217;
b. a deed from Corbin Chicoine and Jessica Chicoine to Tofino Associates, Inc., dated July
30, 2001, and recorded with said Registry at Book 6307,Page 283;
c. a deed from Mary E. Cove to Tofino Associates, Inc., dated November 10, 2001, and
recorded with said Registry at Book 6450, Page 92; and
d. a deed from Joseph Singlet and Amalia F. Singlet to Tofino Associates, Inc., dated
August 7, 2003, and recorded with said Registry at Book 7382, Page 134.
In connection with the said underground transmission of communication and intelligence
residential service, the Grantee shall have the right to install, inspect, maintain, and remove, some
combination of poles, guy, braces, wires, pipes, cables, conduits, transformers, manholes, anchors,
silos, handholds, pull boxes, transformer pads, pedestals, meters, fixtures and other appurtenances
useful in providing transmission of communication and intelligence service as the Grantee may
jointly or severally from time to time deem appropriate; provided, however,that the Grantee may
only install above-ground poles, guy wires, braces, or anchors within the right of way of Black
r - -
tit
Birch Trail up to a point which is filly (50) feet from its intersection with Florence Road. The
pole located at the intersection of Florence Road and Black Birch Trail shall be designated as Pole
ll66-0I for Verizon's purposes.
The Grantor agrees, except with the written permission of the Grantee, that (1) no
building, structure, other improvement or obstruction shall be placed; no excavation, filling,
flooding, or grading shall occur, and no trees or shrubbery shall be planted so as to interfere with
the Grantee's transmission of communication and intelligence systems; and (2) nothing shall be
attached, temporarily or permanently, to any property of the Grantee erected or installed by virtue
of this easement. The Grantee may, without liability to the Grantor and at the expense of the
Grantor, remove and dispose of any of the aforesaid made or installed in violation of the above
and restore said land to its prior condition In the event of the damage to or destruction of any of
said facilities of the Grantee by the Grantor or agents or employees thereof, all costs of repair or
replacement shall be borne by the Grantor.
The Grantee, by the acceptance of this easement, agrees that upon request of the Grantor
and upon execution and delivery to the Grantee of rights and easements acceptable to the
Grantee, it will relocate at the expense of the Grantor any pan of said transmission of
communication and intelligence systems which the Grantor may reasonably request to be
relocated, provided that such relocation is practicable and consistent with sound engineering
principles, including any removal and relocation of such system improperly located due to
incorrect street and property line locations furnished by the Grantor, the Grantor's agents or
employees.
The Grantee further agrees, by the acceptance of this easement, that as long as and to the
extent that the transmission of communication and intelligence systems, together with
appurtenances, located on said land pursuant to this easement are used to provide transmission of
communication and intelligence, the Grantee will repair, replace and maintain such facilities at its
own expense (except otherwise provided in the fourth paragraph hereof) and in connection with
any repair, replacement or maintenance of said systems the Grantee shall promptly restore the
premises to substantially the same condition as existed prior to such repair, replacement or
maintenance, provided, however, that such restorations shall not include any structures, other
improvement or plantings made by the Grantor contrary to the provisions herein.
Any rights herein described or granted, or any interest therein or part thereof, may be
assigned herein for the transmission of communication and intelligence purposes and the Grantor
hereby agrees to and ratifies any such assignment and agrees that the interest so assigned may be
used by the assignee therein for said purposes.
•
The words "Grantor" and "Grantee" shall include lessees, heirs, executors, administrators,
successors and assigns where the context so requires or permits.
TO HAVE AND TO HOLD the premises unto it, the said Grantee, its successors and
assigns, forever.
IN WITNESS WHEREOF, the Gr ntor has hereunto caused (set)
_hand(s) and seal(s) to be affixed this 2SJ^ day of MAY
2004.
Tofino Associates, Inc.
By
cL
Do as A. Kohl, its Presiden and Treasurer
COMMONWEALTH OF MASSACHUSETTS
HAMPSHIRE COUNTY, SS.
�npp ACKNOWLEDGMENT
On this day, 1 , 2004, before me, the undersigned notary public, personally
appeared Douglas A. Kohl, acting in his capacity as President and Treasurer of Tofino Associates,
Inc., proved to me through satisfactory evidence of identification(which was my personal
knowledge as to his identity)to be the person whose name is signedon die preceding or attached
document, and acr" . ed o e hat he signed it voluntarily for its stated purpose.
' 411
Kimberly H. a. . r: o it Public
My commission expires • - 2009.