TR-2014-47 LIMITING ALTERATION OF RIVER FRONT AREA TR-2014-47
A RESOLUTION TO ACCEPT A RESTRICTION LIMITING "ALTERATION" OF
"RIVERFRONT AREA"-
WHEREAS, William F. Borecki and Gloria E. Arbelaeza-Borecki are owners of land
located at Lot 10A, 42-44 Mark Drive, Agawam, Massachusetts; and
WHEREAS, said parcel is described on a plan of land located in Book of Plans 368,
Page 56 recorded in the Hamden County Registry of Deeds; and
WHEREAS, said plan demarcates a portion of Riverfront area at Lot l0A bounded by
fixed monuments set to establish a Restricted Riverfront Area shown on the Plan and
labeled "Permanent Limit of Alteration of Riverfront Area With concrete markers"; and
WHEREAS, in keeping with the statutory requirement to avoid, minimize and mitigate
alteration of Riverfront Area pursuant to the provisions of the Massachusetts Wetlands
Protection act regulations, the Conservation Commission has endorsed the acceptance of
these Restrictions; and
WHEREAS, the owners desire to convey the restriction to the Town of Agawam through
its Conservation Commission; and
WHEREAS, the Agawam City Council must accept said Restrictions pursuant to
Massachusetts General Law Chapter 40, Section 8C.
NOW THEREFORE, BE IT RESOLVED BY THE AGAWAM CITY COUNCIL to
accept the interest of real estate located a Lot 10A, 42-44- Mark Drive, Agawam, MA as
stated in the attached "Grant of Restriction Limiting "Alteration" of "Riverfront Area"
and to authorized the Mayor to take any other actions necessary to carry out the
acceptance of this interest.
PER ORDER OF THE AGAWAM CITY COUNCIL
Christopher . Johnson, President
PPROVE S TO FORM ANS LEGALITY
.U4
Vincent F.jwscia, City Solicitor
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Upon recording, mail to:
Department of Environmental Protection
Bureau of Resource Protection
436 Dwight Street
Springfield, MA 01103
GRANT OF RESTRICTION LIMITING "ALTERATION" OF "RIVERFRONT
AREA" (as defined at 310 CMR 10.04 and 10.58(2)
respectively)
Property Address: Lot IOA, 42-44 Mark Dr. , Agawam, MA
THIS GRANT OF RESTRICTION LIMITING "ALTERATION" OF
"RIVERFRONT AREA" (as defined at 310 CMR 10.04 and 10.58(2)
respectively) of the Massachusetts Wetlands Protection Act
Regulations, 310 CMR 10.00) is made this day of September,
2014, by Almeiro Serna, Martha E. Arbeiaez-Serna, William F.
Borecki and Gloria E. Arbelaez-Borecki , of Agawam,
Hampden County, MA Grantor , pursuant to the provisions and
intent of 310 CMR 10.58 ("Restriction").
WITNESSETH
WHEREAS, Grantor is the owner in fee simple of that certain parcel
of land located in Agawam, Hampden County, Massachusetts, pursuant to
a deed from Langone Realty Corp. to Grantor, dated September 2014
and recorded with Hampden County Registry of Deeds in Book ,
Page on September 2014, described as Lot IOA, 42-44 Mark Dr. ,
Agawam, Massachusetts.
WHEREAS, said parcel (s) being more particularly bounded and described
and being shown on a plan of land prepared by Thomas Wilson & Associates,
for Langone Realty Corp. and recorded with Hampden County Registry of
Deeds in Plan Book 368, Page 56.
WHEREAS, said Plan demarcates a portion of Riverfront Area at Lot 10A
bounded by fixed monuments set to establish a Restricted Riverfront Area
shown on the Plan, and labeled "Permanent Limit of Alteration of
Riverfront Area With concrete markers".
WHEREAS, in keeping with the statutory requirement to avoid, minimize
and mitigate alteration of Riverfront Area pursuant to the provisions of
310 CMR 10.58 of the Massachusetts wetlands Protection Act regulations
established at 310 CMR 10.00
("Regulations"),placement of a deed restriction upon all or a portion of land within a
Riverfront Area [as defined at 310 CMR 10.58(2)] is an acceptable form of"mitigation"
for projects within Riverfront Area;
NOW, THEREFORE, Grantor does hereby GRANT to the Town of Agawam,
acting through the Agawam Conservation Commission, a public body and corporate,
organized and existing pursuant to the provisions of the Massachusetts General Laws and
by authority of MGL c. 40, sec 8C,with offices at of Agawam Town Hall, 36 Main
Street,Agawam,Hampden county,Massachusetts,and its successors and permitted
assigns(Grantee), ("Grantee"), for nominal,non-monetary consideration,the receipt and
sufficiency of which are hereby acknowledged, with Quitclaim Covenants,a GRANT OF
RESTRICTION LIMITING ALTERATION OF RIVERFRONT AREA, the terms and
conditions of which are as follows:
1. Prohibition. Grantor shall not alter(as defined at 310 CMR 10.04 Alter , nor shall
Grantor suffer, allow or cause any person to alter that portion of Riverfront Area("the
Restricted Riverfront Arca") at the Site which is demarcated upon the Site Plan as the
"Outer riparian Area to be Revegetated",and bounded at the Site with monuments shown
on the Site Plan. Alterations include,but are not limited to,the constriction of structures
and impervious surfaces such as buildings,roads, and utilities;the mechanical
disturbance of soil;the destruction of vegetation;the physical deposition or dumping of
any material; the modification of surface and subsurface hydrology.Activities related to
the protection of the Restricted Riverfront Area in a natural vegetated state, such as the
control of invasive species with approval of the Grantee,is not prohibited under this
Restriction. Grantor shall not remove,alter,or intentionally damage,nor shall Grantor
suffer,allow or cause any person to remove,alter, or intentionally damage the
monuments at the Site as shown on the Site Plan.;
2. Enforceability. The rights hereby granted shall include the right to enforce this
Restriction by appropriate legal proceedings and to obtain injunctive and other equitable
relief against any violations,including,but not limited to,relief requiring restoration of
the Site to its condition at the time of this Grant(it being agreed that the Grantee may
have no adequate remedy at law),and shall be in addition to, and not limited to,any other
rights and remedies available to the Grantee. Prior to instituting any action to enforce
any violations of this Restriction, however, Grantee shall first notify Grantor and request
Grantor to remedy the violation;if the violation is not remedied within sixty(60)days,
then the parties shall snake a good faith effort to mediate the dispute before enforcement
action is commenced.
The members, officers,employees and agents of the town of Agawam Conservation
Commission and of the Department may enter upon the"Restricted Riverfront Area" for
the purpose of performing their duties and obligations under the Regulations, with Forty-
eight(48) hours notice to Grantor, unless such entry is necessary for an emergency.
Grantor shall be liable for only such violations of this Restriction as may occur during
Grantor's period of ownership of the Site. By its acceptance,Grantee does not undertake
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any liability or obligation relating to the condition of the Site, including compliance with
hazardous materials or other environmental laws and regulations not caused by Grantee
or its agents. Grantee shall make every effort to enforce the terms of this Restriction, and
any forbearance by Grantee to exercise its rights under this Restriction shall not be
deemed or construed to be a waiver.
3. Term. This Restriction shall run with the Site, and any portion thereof, for fifty years.
4. Concurrence Presumed. It is agreed that:
(i) Grantor,and all parties claiming by,through or under Grantor, shall be deemed to
be in accord with the provisions of this document; and
(ii) all such parties and any parry claiming by,through, or under them,and their
respective agents,contractors,sub-contractors and employees,also agree that the
Restriction herein established shall not be violated and that their respective interests
in the , or any portion thereof,shall be subject to the provisions herein set forth-
5. Sub§Muent Transfers. Grantor agrees to incorporate by reference the terms of this
Restriction in any deed or other legal instrument by which Grantor conveys any interest
in all or a portion of the Site,including,without limitation,a leasehold interest. Grantor
further agrees to give written notice to Grantee of the transfer of any interest at least forty
(40)days prior to the date of such transfer. Failure of Grantor to do so shall not impair
the validity of this Restriction or limit its enforceability in any way.
6. Recordation. Grantor shall record and/or register this Restriction with the appropriate
Registry of Deeds and/or Land Registration Office within thirty (30)days of receiving
the accepted Restriction from Grantee. Grantor shall file with Grantee and with the
Department a certified Registry copy of this Restriction as recorded and/or registered
within thirty(30)days of its date of recordation and/or registration.
7. Termination of R.igts and Obligations. Notwithstanding anything to the contrary
contained herein,the rights and obligations under this Restriction of any party holding an
interest in the Site shall terminate upon transfer of that party's interest,except that
liability for acts or omissions occurring prior to,or subsequent to, the transfer,and
liability for the transfer itself if the transfer is a violation of this Restriction, shall survive
the transfer.
8. Estoppel Certificates. Upon request by Grantor,the Grantee shall, upon sixty(60)
days notice, execute and deliver to Grantor any document, including an estoppel
certificate, which certifies Grantor's compliance with any obligation of Grantor contained
in this Restriction, and which otherwise evidences the status of this Restriction as may be
requested by Grantor.
9. Amendment. In the event circumstances arise under which an amendment to or a
modification of this Restriction may be appropriate, Grantor and Grantee may by mutual
consent amend any term or provision hereof provided that the parties receive written
authorization from the Department;and provided that any such amendment,together with
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any approvals necessary to its effectiveness, shall be recorded with the Hampden County
Registry of Deeds t. Any amendment shall be consistent with the purposes of this
Restriction.
10. Extingu:shment. This Restriction shall not be released or extinguished without the
express written approval of Grantor,Grantee and the Department. In the event that this
Restriction is released or extinguished, such release shall be recorded at the Hampden
County Registry of Deeds, together with any approvals necessary to prove its
effectiveness.
11. Effective Date. Grantor and Grantee intend that this Restriction take effect on the
day and year this Restriction is recorded at the Hampden County Registry of,after being
executed by Grantor and accepted by Grantee.
12. Miscellaneous Provisions
a. Controlling Law. The interpretation and performance of this Restriction shall
be governed by the laws of the Commonwealth of Massachusetts,and
b. Severability. If any court of competent jurisdiction determines that any
provision of this Restriction shall to any extent be held invalid or
unenforceable,such provision shall be deemed to have been modified
automatically to conform to the requirements for validity and enforceability as
determined by such court or tribunal and the remainder shall not be affected.
WITNESS the execution hereof under seal this day of ,20—.
Name of Grantor Name of Grantor
Name of rantor Name o Grantor
[State)
On this day of , 20 ,before me, the undersigned notary
public,personally appeared , to me personally known or
otherwise proved to me through satisfactory evidence of identification which were
to be the person whose name is signed on the preceding
document or attached document, and acknowledged to me that he/she signed such
document voluntarily for its stated purpose.
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Notary Public:
My Commission Expires:
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APPROVAL AND ACCEPTANCE OF GRANT OF RESTRICTION LIMITING
ALTERATION OF RIVERFRONT AREA
The Town of Agawam does hereby approve and accept the foregoing Grant
of Restriction Limiting Alteration of Riverfront Area.
[Board of Selectmen][Authorized Municipal Body/Ofcer(s)]
Date:
COMMONWEALTH OF MASSACHUSETTS
SS.
On this day of , 20_,before me,the undersigned notary public,
personally appeared and proved to me through
satisfactory evidence of identification which were 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.
Notary Public:
My Commission Expires:
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The Agawam Conservation Commission does hereby approve and accept the
foregoing Grant of Restriction Limiting Alteration of Riverfront Area.
COMMONWEALTH OF MASSACHUSETTS
ss.
On this day of � ,20C , before me,the undersigned notary public,
personally appeared t ,4 ti. �-1 5 `1 t vsng,,jj,-.ln_ r �and proved tome through
satisfactory evidence of identification which were . 7 •)„ ? o be the
person whose name is signed on the preceding or attach -document, d acknowledged
to me that he/she signed it voluntarily its stated p se.
Notary Public: t,,,\ t'V
/'
My Commission Expires:
MY COMMISSION EXPIFS
JUKE 22,201S
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