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HomeMy WebLinkAboutBoard of Selectmen Agenda September 21, 2011 Packet_201402061642277578 MEMORANDUM OF UNDERSTANDING BETWEEN NANTUCKET BOARD OF SELECTMEN, THE TOWN MANAGER AND NANTUCKET AIRPORT COMMISSION This Memorandum of Understanding is entered into this _______ day of _________, 2011, between the Nantucket Board of Selectmen (“Board”), the Nantucket Airport Commission (“Commission”), and the Town Manager. WHEREAS, the Commission is responsible for the operation and maintenance of the Nantucket Memorial Airport (“Airport”) and is authorized under G.L. c.90, §51I to expend funds available to the Airport and to “make contracts for the maintenance operation, construction, enlargement and improvement to the Airport and for the purchase of materials, supplies and equipment pursuant to the laws of the Commonwealth governing the making of like contracts;” and WHEREAS, the Town Administration has identified certain procurement practices by the Airport that do not conform to the requirements of law, and which have resulted in some instances in the disapproval by the Town Accountant pursuant to G.L. c.41, §56, of warrants for payment to vendors and contractors doing business with the Airport; and WHEREAS, the Massachusetts Attorney General has commenced an investigation into procurement practices at the Airport and it is expected that the Attorney General will issue findings that the Airport, through its Airport Manager, has engaged in procurements and contracting practices in violation of the laws of the Commonwealth relating to procurement and bidding of public contracts; and WHEREAS, the Board has initiated the process of retaining a consultant to conduct a forensic audit, fiscal and operational review of the Airport relating to procurement and other matters; and WHEREAS, the Commission, independent of the Attorney General’s investigation, has determined that the Airport Manager and staff working under the direction and supervision of the Airport Manager, has not taken adequate steps to ensure that all procurements by the Airport are in compliance with Massachusetts law; and WHEREAS, the Town of Nantucket employs a Chief Procurement Officer (“CPO”) under G.L. c.30B, who is certified as a Massachusetts Public Purchasing Official; and WHEREAS, the Board and the Commission have jointly determined that placing the Airport procurement function under a centralized procurement system under the supervision and direction of the CPO is necessary and appropriate in order to assure future compliance of Airport-related procurements with Massachusetts law; and, 2 WHEREAS, although the Nantucket Town Charter provides that the Airport is not part of the Town Administration function, the Commission has requested the assistance of the Town Administration in conducting Airport-related procurements. NOW, THEREFORE, the Board, the Commission, and the Town Manager agree as follows: 1. The Commission and the Board agree that the CPO shall have full authority to supervise and direct all Airport-related procurements, and shall have full authority to establish procurement practices and procedures to be followed by Airport staff. Such practices and procedures may include, but not necessarily be limited to: (a) formal training of Airport staff performing procurement functions under the supervision and direction of the CPO; (b) establishing written contracts using the Town’s standard form contract for all procurements in excess of $5,000, and for such other contracts as the CPO determines to be advisable; (c) ensuring that prevailing wage rates are included in all procurement documents where applicable and that the Prevailing Wage Law is enforced on all applicable Airport contracts; (d) ensuring that all contracts are awarded on the basis of fair and open competition; (e) avoiding bid splitting and unwarranted increases in the scope of services through the change order process; (f) maintaining adequate documentation in a separate procurement file for every procurement exceeding $5,000; (g) interpretation of the so-called “aviation use” exemption under G.L. c.30B, §1(29) to specific Airport procurements; and (h) any other practices and procedures that are deemed necessary by the CPO to insure compliance by the Airport with the laws of the Commonwealth, any findings and orders of the Attorney General, the conclusions and recommendations of the forensic audit, fiscal and operational review report, and good and accepted procurement practices. 2. The Commission will instruct Airport staff to cooperate fully with the Town Administration in establishing a program whereby all Airport-related procurements will be conducted under the supervision and direction of the CPO. 3 3. The Commission agrees to establish procedures applicable to all Airport staff to maintain a procurement file for all procurements in excess of $5,000, which file shall include all documents and backup information as the CPO determines is necessary in order to ensure that adequate information is readily available to demonstrate compliance with public bidding laws. 4. The Town Administration shall continue to instruct its financial staff not to approve any warrants for the payment of bills by vendors, contractors, and consultants, pursuant to G.L. c.41, §56, unless there is adequate documentation from Airport staff and the CPO that procurement laws have been complied with. 5. The Commission agrees that it will establish employment policies applicable to staff employed by the Commission which provides for disciplinary measures against any staff member that does not cooperate fully with the CPO in implementing the policies and procedures established in this Memorandum of Understanding. 6. The Commission agrees to establish a written policy that the execution of all Airport contracts in excess of $25,000 be approved and executed by the Airport Commission. 7. The Commission, the Board, and the Town Administration shall cooperate fully with the Office of the Attorney General in the current investigation, and shall instruct its staff to do the same. The Parties to this Memorandum of Agreement agree to cooperate to implement any and all orders issued by the Attorney General as is reasonably possible. The Commission also agrees to cooperate with the Board and the Town Administration in implementing the recommendations as a result of the forensic audit, fiscal and operational review as approved by the Board. 8. In light of the significant increase in the responsibilities of the Town Administration and the CPO to implement this Memorandum of Understanding, the Commission and the Board agree that, when formulating the Airport’s annual operating budget, the Airport Enterprise Fund, established under G.L. c.44, §43F ½ , will be charged the indirect costs associated with the implementation of this Memorandum of Understanding, including the hiring of additional staff by the Town Administration, if determined to be necessary. The amount of the indirect cost charge shall be reasonably determined by the Town Administration in conformance with all requirements of the Massachusetts Department of Revenue relating to indirect cost allocation for Enterprise Funds. 4 SIGNED THIS _____ DAY OF _________, 2011: Board of Selectmen Airport Commission Town Manager _______________________ _______________________ ________________________ _______________________ _______________________ _______________________ _______________________ _______________________ _______________________ _______________________ _______________________ 433570/nantair/0006 September 22, 2011 Michael Busby 40B Project Coordinator MassHousing Finance Agency 1 Beacon Street Boston, MA 02108 RE: Town of Nantucket Comments on Site Approval Application for Sachem’s Path 40B Dear Mr. Busby: Thank for you seeking the Town’s comments regarding the above. The site is a parcel that the Town transferred to the Nantucket Housing Authority for this type of development. The Board of Selectmen, at its September 21, 2011 meeting, agreed to forward the following preliminary comments: 1. Traffic. A review or study should be conducted regarding the impact of increased traffic on area roads and neighborhoods. Additionally, egress to the development is of concern, specifically where and how many roadways and pedestrian paths will be located. Interconnection/integration of roads to the contiguous Housing Authority properties is something that may be beneficial to incorporate into the final design. 2. Parking. Parking availability must be adequate so as to eliminate or mitigate overflow problems we are experiencing in other developments which have become overly burdensome to public safety departments. Consideration should be given to a common parking area for guests and visitors in addition to minimum parking spaces in designated spots for each dwelling unit. Parking should not be allowed in landscaped areas or outside of the development. 3. Existing sewer line. There is a sewer line that runs through the property. Conceptual plans show only roads being constructed over the location of the line; however, precautions and protections must be in place to protect that line, which is a high pressure sewer force main (is it??) that runs to the Surfside Wastewater Treatment Facility. Any impact on that line would be extremely problematic. 4. Dwellings. The Historic District Commission has some concerns which have been expressed to the Housing Assistance Corporation and Nantucket Housing Authority in some preliminary discussions, relating to diversity in dwelling size, design and spacing. Adequate restrictions on occupancy must be in place, including no conversions of non-habitable space into bedroom/habitation space. The Town has faced problems of this nature in other developments and, again, unnecessary burdens have been placed on public safety departments as a result. We encourage the dwellings to be as energy-efficient as possible. 5. Infrastructure. All dwellings must be connected to Town sewer and water. There should be no septic systems. There should be adequate interior pedestrian connections and/or facilities. Access to public transportation and the possible improvement/enhancement of nearby NRTA shuttle stops should be included. A playground and/or other family amenity(s) is highly encouraged. 1. Financial Feasibility. The Town has already participated in financially underwriting this project in the value of the land that it has provided as well as through the dedication of Community Preservation Act (CPA) funds in 2011. The Board has not been provided with information that the applicant has secured borrowing commitments for the finished units, identified potential buyers and would like to understand what further public resources are intended to be committed. Your letter references “information regarding municipal actions previously taken to meet affordable housing needs” including “overlay districts adopted under MGL c. 40R”. The Board of Selectmen participated in discussions with the Nantucket Housing Authority in 2009 about the possibility of this site being ideal for such an overlay and remains disappointed about the outcome. Under the provisions of c. 40R, there would be an off-set for possible waivers of local fees. Thank you for the opportunity to comment on this significant project. Sincerely, C. Elizabeth Gibson Town Manager Cc: Gisele Gauthier, Housing Assistance Corp Renee Ceely, Executive Director, Nantucket Housing Authority Planning Department Zoning Board of Appeals Historic District Commission Director of Human Services Police Chief Fire Chief DPW Director Building Commissioner Code Enforcement Director Nantucket Regional Transit Authority Administrator Law Office of Stephen J. Small, Esq., P.C. Stefan Nagel, Esq., Of Counsel One Gateway Center, Suite 801 Newton, MA 02458-2804 617-357-4012 Facsimile 617-357-1857 www.lawofficeofstephensmall.com snagel@stevesmall.com MEMORANDUM To: Chairman, Board of Selectmen, Town of Nantucket From: Stefan Nagel, Esq., Counsel to Grantor Through: Cormac Collier, Executive Director, Nantucket Land Council, Inc. Date: September 19, 2011 Subject: Summary of Conservation Restriction: Hummock Pond of Nantucket HOA to Nantucket Land Council and Nantucket Islands Land Bank ________________________________________________________________________ Acres Protected: 56 acres +/-. Property Address: 180 Hummock Pond Rd. (46 acres +/-); 220 Hummock Pond Rd. (10 acres +/-), running north from Heller Way toward Bartlett Farm Rd., Nantucket, Massachusetts, shown as lots 78 and 47 on the attached subdivision plan. Grantor: Hummock Pond of Nantucket Homeowners Association, Inc. Grantees: Nantucket Land Council, Inc. and Nantucket Islands Land Bank Term of the Conservation Restriction: Perpetual, as reflected in the so-called “habendum” paragraph, and confirmed at paragraphs L, Q and S of the conservation restriction. Prior Approvals: The conservation restriction has been approved in writing by the Grantor and both Grantees. In accordance with state law and practice the conservation restriction has also been approved by staff of the Massachusetts Executive Office of Energy and Environmental Affairs. Therefore, in accordance with MGL chap. 184, sec. 32, the Secretary of Energy and Environmental Affairs 1 will be prepared to approve the conservation restriction in writing upon submission to him of the final, executed document approved by the Nantucket Board of Selectmen. Conservation Values Protected by the Conservation Restriction:  Open Space Preservation The protected property adjoins other conservation lands owned and protected by the Nantucket Land Council and the Nantucket Islands Land Bank  Water Quality A significant portion of the property lies within the newly created Hummock Pond Watershed District. Particularly because of the size of the encumbered property, the conservation restriction protects the water quality not only of Hummock Pond, but also of Nantucket’s sole source aquifer.  Preservation of Open Space Preservation of the property as open space is pursuant to the following governmental permits and declarations: Nantucket Planning Board Special Permit File no. 013-81 and Statement of Conditions of Subdivision Approval by the Planning Board dated May 27, 1981. In addition, the conservation restriction preserves open space pursuant to clearly delineated governmental conservation policy and eliminates the possibility of new development along a new public bike path easement to be granted by the Grantor, thereby preserving views for the general public.  Protection of Natural Habitat The property falls within an area designated by the Massachusetts Natural Heritage Program as “Priority Habitat for State-Protected Rare Species”. The conservation restriction therefore protects a significant relatively natural habitat of plants and related ecosystem. Moreover, the conservation restriction will contribute to the protection of coastal and wetland ecosystems. Prohibited and Permitted Uses (Paragraphs B and C of the Conservation Restriction): The property may not be developed, mined, or subdivided, no refuse may be deposited, and its surface may not be altered, with minor exceptions as follows: For the construction of a public bike and pedestrian path along Hummock Pond Road; For the conduct of land conservation activities; 2 For the construction of septic systems and wells ONLY to replace those systems owned by adjacent homeowners which have failed and cannot be relocated on their property, as such failure is defined in accordance with Massachusetts laws as verified by the Nantucket Health Department. The above are subject to the prior approval of the Grantees, which approval may be withheld (see paragraph E of the conservation restriction). The exercise of additional rights of modest consequence is reserved to the property owner, provided conservation values are not impaired. Enforcement Rights of the Grantees (Paragraphs F, G and J of the Conservation Restriction): The Grantees may enforce the conservation restriction. Except in the case of emergency, the property owner is provided a period in which to “cure” the violation. If the property owner does not timely begin curative activities, then the Grantees may initiate corrective actions, including appropriate legal proceedings. In cases of violations, the Grantees’ costs of enforcement may be recovered. Extinguishment (Paragraph H of the Conservation Restriction): In accordance with guidance provided under federal rules and standards promulgated by the Massachusetts Executive Office of Energy and Environmental Affairs, the conservation restriction may be terminated (extinguished) only by a court of competent jurisdiction under extremely limited circumstances. In the event of extinguishment, the Grantees are entitled to a proportionate share of post-extinguishment sale proceeds as defined in the document. Amendment (Paragraph T of the Conservation Restriction): Amendments to the conservation restriction may be made under only exceptional circumstances because of limitations imposed under federal and state law, and principles related to the possible application of a “charitable trust”. Nonetheless, in keeping with best conservation restriction drafting practices, the possibility of amendment and the circumstances under which amendments may be considered are addressed in the document. Disclaimer: This summary is meant to be used as a guide to the terms of the conservation restriction and in no way replaces or supersedes the conservation restriction. Reference to the conservation restriction should be made for specific details. In case of any conflict between this summary and the conservation restriction, the provisions of the conservation restriction shall control. 3 4 L:EASE-MEMOS\HUMMOCKPONDHOA.DOC 1 of 24 Conservation Restriction V 17 Hummock Pond of Nantucket Homeowners Association, Inc. to Nantucket Land Council, Inc. and Nantucket Islands Land Bank CONSERVATION RESTRICTION Hummock Pond of Nantucket Homeowners Association, Inc. to Nantucket Land Council, Inc. and Nantucket Islands Land Bank The Hummock Pond of Nantucket Homeowners Association, Inc., a Massachusetts corporation whose business and mailing address is 10 Ishmael Road, Nantucket, MA 02554, and its successors and assigns (collectively, the "Grantor"), acting pursuant to Sections 31, 32, and 33 of Chapter 184 of Massachusetts General Laws, hereby grant with quitclaim covenants to the Nantucket Land Council, Inc., a Massachusetts non-profit corporation with a principal place of business at 6 Ash Lane, Nantucket, Massachusetts 02554, and its successors and permitted assigns and to the Nantucket Islands Land Bank, a governmental body of the Commonwealth of Massachusetts with an office located at 22 Broad Street, Nantucket, MA 02554, and its successors and permitted assigns, as equal co-holders (both, collectively, "Grantee"), for sixty thousand dollars ($60,000) and other consideration, in perpetuity and exclusively for conservation purposes, the following described Conservation Restriction on a certain parcel of land located in the Town of Nantucket, Massachusetts, consisting of Lots 47 and 78 shown on Land Court Plan 35893-H filed with Certificate No. 8638 at the Nantucket Registry District of the Land Court constituting approximately 56 acres, and more particularly described as set forth in Exhibit A (the “Premises”). A copy of said Land Court Plan 35893-H depicting the Premises which are subject to the Conservation Restriction hereunder is attached hereto as Exhibit B. For Grantor’s title see Certificate of Title No. _____ at the Nantucket Registry District of the Land Court. Grantor Hummock Pond of Nantucket Homeowners Association, Inc. is a membership homeowner’s organization incorporated under the laws of the Commonwealth of Massachusetts. Its membership consists of owners of certain Lots numbered 41 - 78 (excluding Lots 47 and 78) shown on Land Court Plan 35893-H filed with Certificate No. 8638 at the Nantucket Registry District of the Land Court. Therefore, “Member(s)” shall mean the record owner, whether one or more persons or entities, of the fee simple title to any Lot numbered 41 – 78, excluding Lots 47 and 78, shown on the Land Court Plan 35893-H filed with Certificate No. 8638 at the Nantucket Registry District of the Land Court. For purposes of, and as used in this Conservation Restriction, the terms “Member” and “Members” do not include the “Grantor” unless a Member or Members become assigns or successors to the original Grantor, and the term “Grantor” does not include a “Member” or “Members” unless expressly stated.. 2 of 24 Conservation Restriction V 17 Hummock Pond of Nantucket Homeowners Association, Inc. to Nantucket Land Council, Inc. and Nantucket Islands Land Bank Grantee warrants that Grantee is a charitable organization described in Section 501(c)(3) of the Internal Revenue Code of 1986, as amended, and the regulations thereunder (the “Code”), and a “charitable corporation whose purposes include conservation of land” in accordance with MGL Chap. 184, Section 32 whose primary purpose is “To encourage, support and engage in research, study, and education regarding land in the County of Nantucket …and to engage in, institute, defend and to support in any legal manner or way any litigation or administrative procedures regarding such land, its ownership and utilization; and to engage in such other activities as are necessary or reasonably appropriate thereto.” Grantee represents that Grantee is a “qualified organization,” as that term is defined in Section 170(h)(3) of the Code. Grantee has received a determination letter from the Internal Revenue Service dated November 24, 2003, to the effect that Grantee is a “publicly-supported” organization described in Section 509(a)(1) and Section 170(b)(A)(vi) of the Code, and is not a private foundation under Section 509(a)(1) of the Code. Grantor and Grantee recognize the natural, scenic, and special character of the Premises and have the common purpose of the conservation and protection in perpetuity of the Premises through the use of restrictions on the Premises. NOW, THEREFORE, KNOW ALL PERSONS BY THESE PRESENTS, in consideration of the above and mutual covenants, terms, conditions, and restrictions contained herein, and pursuant to Section 170(h) of the Code and the laws of the Commonwealth of Massachusetts, including M.G.L. Chapter 184, Sections 31-33, Grantor hereby voluntarily grants and conveys to Grantee and its successors and permitted assigns a conservation restriction (the “Restriction” or “Conservation Restriction”) in perpetuity and for conservation purposes over the Premises of the nature and character and to the extent hereinafter set forth. Grantor herein declares that the Premises shall be held, mortgaged, encumbered, transferred, sold, conveyed, used, and occupied subject to the covenants, conditions, and restrictions hereinafter set forth, which covenants, conditions, and restrictions shall be deemed to run with the land in perpetuity and to burden the Premises in perpetuity. A. PURPOSES: This Conservation Restriction is defined in and authorized by Sections 31-33 of Chapter 184 of the General Laws and otherwise by law. The purpose of this Conservation Restriction is to assure that the Premises will be maintained in its current condition in perpetuity and for conservation purposes, predominantly in a natural, scenic and undeveloped condition, and to prevent any use or change that would materially impair or interfere with its conservation values. 3 of 24 Conservation Restriction V 17 Hummock Pond of Nantucket Homeowners Association, Inc. to Nantucket Land Council, Inc. and Nantucket Islands Land Bank The specific conservation values of the Premises are documented in a report to be kept on file at the offices of Grantee and incorporated herein by this reference, which documentation (“Baseline Documentation”) the parties agree provides an accurate representation of the Premises as of the effective date of this grant and which is intended to serve as an objective information baseline for monitoring compliance with the terms of this grant. This Conservation Restriction is intended to protect the aforementioned conservation values of the Premises and Nantucket by prohibiting all buildings; by prohibiting practices such as commercial agriculture and raising of animals which can damage or alter natural plant communities; and by encouraging conservation of the land in its predominantly vacant and undeveloped condition, as more particularly described herein. These conservation values are more particularly described as including the following: • Open Space Preservation. The protection of the Premises contributes to the protection of the scenic and natural character of surrounding permanently protected Nantucket Islands Land Bank land to the north being used as pasture land and open space, to the south land owned by the Nantucket Islands Land Bank which is an open undeveloped track extending to the Atlantic Ocean, and a conservation restriction to the west held by the Nantucket Land Council which is used as open space and pasture land and abuts Hummock Pond and the protection of the Premises will enhance the open-space value of these lands. * Water Quality. The Premises are located on Nantucket Island which has a sole source aquifer for the use of its inhabitants. Protection of the Premises will further protect the water quality of the aquifer. The Premises is also located within the Hummock Pond Watershed. Protection of the Premises will prevent further pollutants from entering groundwater from this location and ultimately into Hummock Pond. • Scenic Protection. The Premises are located along Hummock Pond Rd and Heller’s Way afford the public with uninterrupted views of pristine vegetation and open space which if developed would interrupt, obstruct and fragment beneficial scenic vistas. The Grantor has also granted a bike path easement to the Town of Nantucket which will provide additional scenic views along the entire stretch of Hummock Pond Road for the length of the bike path. • Protection of Wildlife Habitat. The entire Premises fall within an area designated as “Priority Habitat for State-Protected Rare Species” by the Massachusetts Natural Heritage Program. The Premises are comprised of a coastal shrub understory, a pitch pine forest, open grasslands and heathlands, and numerous wetland ecosystems. 4 of 24 Conservation Restriction V 17 Hummock Pond of Nantucket Homeowners Association, Inc. to Nantucket Land Council, Inc. and Nantucket Islands Land Bank Because development on Nantucket threatens to destroy much of the Island’s natural environment and threatens to introduce exotic and invasive species of plants, conservation of the Premises in its predominantly undisturbed and natural condition maintains increasingly rare indigenous wildlife and plant habitats on Nantucket. • Furtherance of Governmental Policy. Preservation of the Premises is pursuant to clearly delineated conservation policy expressed in Nantucket’s Master Plan, adopted by Nantucket’s voters at the Annual Town Meeting in April 2009, which states in the Town of Nantucket 2007 Open Space and Recreation Plan as Goal/Objectives 1C: “The town should encourage the use of creative regulatory and non-regulatory land protection tools such as conservation restrictions, tax abatements, gifts and zoning measures.”; and in The Nantucket Comprehensive Community Plan (NCCP), including the following objectives therein: Objective 4.1, “To aggressively acquire land and conservation restrictions to protect natural ecosystems;” Objective 4.2, “To encourage land management activities by the Land Bank and nonprofit entities to provide permanent resource protection;” Preservation of the Premises as open space is further pursuant to clearly delineated governmental conservation policy in accordance with "Nantucket's Goals and Objectives for Balanced Growth" which was adopted in November 1990 by Town Meeting and states as Objective A-1: "To identify and acquire critical open spaces through outright ownership or by less-than-fee means, such as conservation restrictions, scenic easements, and the purchase of development rights, in order to complete the Island's open space network. Preservation of the Premises as open space is pursuant to the following permits and Declarations: Nantucket Planning Board Special Permit File no. 013-81 and Statement of Conditions of Subdivision Approval by the Planning Board dated May 27, 1981. Furthermore, the prohibited uses and reserved rights described herein are more restrictive than the conditions outlined in the Special Permit and further protect the conservation values of the property. B. Prohibited Uses. Except for reserved rights as set forth in Paragraph C below, Grantor will neither perform nor give permission to others to perform the following acts or uses which are prohibited on, under, and above the Premises: (1) The construction or placement of any temporary or permanent building, landing strip, helicopter landing area, tennis court, mobile home, swimming pool, asphalt or concrete pavement, stadium, bleachers, outdoor lighting equipment, ropes course, sign, billboard, or other advertising display, utility pole, tower, conduit or line, septic system, or any other temporary or permanent structure on, above, or under the Premises; 5 of 24 Conservation Restriction V 17 Hummock Pond of Nantucket Homeowners Association, Inc. to Nantucket Land Council, Inc. and Nantucket Islands Land Bank (2) Excavating, mining, dredging or removing from the Premises of soil, loam, peat, gravel, sand, rock or other mineral resource or natural deposit except as necessary for proper drainage or soil conservation and then only in a manner which does not impair the Purpose of this Conservation Restriction; (3) Placing, filling, storing or dumping on the Premises of soil, refuse, trash, boats, trailers, vehicle bodies or parts, rubbish, debris, junk, waste or other substance or material whatsoever or the installation of underground tanks; (4) Cutting, removing or otherwise destroying trees, grasses or other vegetation on the Premises; (5) The conduct of activities detrimental to drainage, flood control, water conservation, water quality, erosion control or soil conservation; (6) The use of motorcycles, motorized trail bikes, snowmobiles and all other motorized vehicles and activities; (7) Division or subdivision of the Premises, except for merging all or a portion of the Premises with abutting property or properties. No portion of the Premises – either following such merger or in the absence of such merger – may be used to satisfy or comply with building, development or density requirements on the Premises or on any other property; (8) All commercial and municipal structures and all commercial or industrial activities and uses; (9) Any work, including, but not limited to, filling and/or construction of roads, in wetlands as defined by the Wetlands Protection Act (Chapter 131, Section 40) or the Nantucket Wetlands Bylaw (Chapter 136 of the Nantucket Code); (10) The use of the Premises for recreation, business, residential or industrial use of the Premises. (11) The use of pesticides and fertilizers; and (12) Any other use of the Premises or the conduct of any other activity on the Premises which would materially impair the Premises’ conservation values unless necessary for the protection of the conservation values that are the subject of this Conservation Restriction. C. Reserved Rights. The provisions of Paragraph B notwithstanding, the following acts and uses by Grantor are permitted on, above or under the Premises provided they do not materially impair the Premises’ conservation values and they are not inconsistent with the purposes of this Conservation Restriction. These rights are 6 of 24 Conservation Restriction V 17 Hummock Pond of Nantucket Homeowners Association, Inc. to Nantucket Land Council, Inc. and Nantucket Islands Land Bank conveyed to the Grantor and not to individual Members of the original Grantor Hummock Pond of Nantucket Homeowners Association, Inc, or any successor membership entity. The original Grantor Hummock Pond of Nantucket Homeowners Association, Inc. or successor homeowner association, if any, may exercise these rights in accordance with its own governance process and by-laws which may include authorizing third parties or its Members to carry out actions permitted under the provisions of this Paragraph C. (1) The right to excavate and remove soil, gravel or other mineral resource or natural deposit only as may be necessary for the conduct of those uses and activities permitted in this Conservation Restriction, or for the maintenance of good drainage, soil conservation practices or other use of or activity on the Premises permitted under this Conservation Restriction. Immediately following the completion of such use or activity any disturbed area shall be restored to the greatest extent possible to its undisturbed condition immediately preceding the initiation of the excavation or removal; (2) Subject to Grantee’s prior approval in accordance with Paragraph E hereof, the right to locate and install (and thereafter, without such approval, to maintain) subsurface septic systems and wells blended into surrounding topography and landscaping, only for the purpose of replacing previously operational septic systems and wells located on Members’ Lots which have failed or are deemed to have failed as defined by Massachusetts law, as long as all reasonable efforts to locate the system or portions of the system or well on a Member’s Lot is exhausted, as verified by the Nantucket Health Department. No septic system or well may be constructed on the Premises which is necessitated by new construction. Immediately following the completion of such installation, any disturbed area shall be restored to the greatest extent possible to its condition immediately preceding initiation of the installation. The Grantor shall set its own procedures to ensure funds are set aside to ensure disturbed areas are restored; (3) Subject to Grantee’s prior approval in accordance with Paragraph E hereof, the right to grant and use underground utility easements and associated rights of way as long as no other reasonable alternative locations exist. Immediately following the completion of any associated excavation, any disturbed area shall be restored to the greatest extent possible to its undisturbed condition immediately preceding initiation of the excavation. The Grantor shall set its own procedures to ensure funds are set aside to ensure disturbed areas are restored; (4) The right to grant a permanent public access easement abutting Hummock Pond Road for bicycles and pedestrians to the Town and/or County of Nantucket and - subject to Grantee’s prior approval in accordance with Paragraph E hereof as to final easement location along Hummock Pond Road, width of easement area, and requirements for the restoration of disturbed land areas - - the right to allow the said Town and/or County to construct a bicycle and pedestrian path, paved or unpaved, 7 of 24 Conservation Restriction V 17 Hummock Pond of Nantucket Homeowners Association, Inc. to Nantucket Land Council, Inc. and Nantucket Islands Land Bank and to maintain the easement area for said uses. All work shall avoid wetland resource areas as protected by the Massachusetts State Wetlands Protection Act and the Nantucket Wetlands Bylaw to the greatest extent possible. All work taking place within wetland jurisdictional areas must be approved by applicable local, state, and federal agencies. (5) The right to excavate a known archaeological site identified by and under the direction of a qualified organization such as the Massachusetts Historical Commission according to Massachusetts Regulations 950 CMR 70; (6) The right to use, clear, maintain in their unpaved condition and relocate for walking, including dog walking, horseback riding and bicycling purposes those trails and paths existing on the effective date of this grant as shown in the Baseline Documentation. Such trails and paths shall not exceed ten (10) feet in width; (7) Subject to Grantee’s prior approval in accordance with Paragraph E, hereof The right to conduct any activity, such as selective cutting, mowing or burning, to manage the habitat of any threatened or rare species, as identified by the Massachusetts Natural Heritage Program or its successors, and/or any other natural plant community on Nantucket, and/or to enhance or manage wildlife. Grantee may impose conditions or limitations to protect wildlife, natural vegetation and environmental systems. Such conditions and limitations may include the limited erection of nest boxes or osprey poles; (8) Subject to Grantee’s prior approval in accordance with Paragraph E, hereof the right to plant indigenous species of plants which are native to Nantucket. (9) Subject to Grantee’s prior approval in accordance with Paragraph E, hereof the right to control noxious or invasive plant and animal species by mechanical and/or chemical means on the Premises, (10) The right to control ticks with applications of Damminix Tick Tubes or a similar product that uses targeted tick, life cycle control, from the border of the Premises up to 15 feet within the Premises; (11) The right to walk and conduct other noncommercial passive recreational (including educational) activities on foot; (12) The right to remove diseased or dead trees, bushes or limbs; (13) The right to trim bushes and trees that overhang abutting property lines whether diseased, dead or not; (14) The right to survey and to conduct scientific research, including occasional erection of bird mist nets; 8 of 24 Conservation Restriction V 17 Hummock Pond of Nantucket Homeowners Association, Inc. to Nantucket Land Council, Inc. and Nantucket Islands Land Bank (15) In addition to the right to replace in their same locations those signs existing on the effective date of this grant, as shown in the Baseline Documentation, with signs of similar dimensions and materials, the additional right to erect new signs after the effective date of this grant and to approve where the Grantee may erect new signs. Aside from new signs described in the next sentence, such new signs are to be no greater than twelve (12) inches square, and are to inform and educate the public about the Premises and this Conservation Restriction. Notwithstanding the limitations of the preceding two sentences, signs which mark street locations or which are needed for safety or traffic notifications may be erected along roadways which cross or enter the Premises; (16) The right to erect and maintain fence posts and post and rail fences and to approve where Grantee may erect fence posts and post and rail fences; (17) The right to use motor vehicles only as necessary and solely for exercising any of the reserved rights in this Paragraph C or as necessary by the police, firefighters, Board of Health agents, Department of Environmental Protection personnel, or other governmental agents in carrying out their lawful duties; and (18) The right to construct a dry well or install other drainage structures, limited to the greatest extent possible, to cure water drainage problems on Ahab Drive, provided specifications are approved in advance of construction by the Grantee in accordance with Paragraph E hereof. Immediately following the completion of such construction or installation any disturbed area shall be restored nearly as possible to its undisturbed condition immediately preceding initiation of the construction or installation. Certain reserved rights under this Paragraph C may require permits from one or more public agencies. The inclusion of any such rights herein does not imply that Grantee or the Commonwealth takes any position on whether any such permit should be issued. D. Prior Notice to Grantee. Grantor agrees to notify Grantee, in writing, at least thirty (30) days prior to exercising those rights reserved in subparagraph 3 of Paragraph C hereof, and again shortly before commencing uses and activities previously approved by Grantee in accordance with Paragraph E hereof. The notice shall describe the nature, scope, design, location, timetable and any other material aspect of the planned activity in sufficient detail to permit Grantee to monitor the proposed activity to assure that it is conducted in a manner that is not inconsistent with the purposes of this Conservation Restriction. E. Prior Approval of Grantee. Whenever approval by Grantee is required under the provisions of subparagraphs 2, 3, 4, 7, 8, 9, and 18 of Paragraph C hereof, Grantor shall request such approval in writing delivered to Grantee not less than thirty (30) days prior to the date Grantor intends to undertake the activity in question; however, 9 of 24 Conservation Restriction V 17 Hummock Pond of Nantucket Homeowners Association, Inc. to Nantucket Land Council, Inc. and Nantucket Islands Land Bank Grantee may waive or reduce the required period of time, provided said waiver is obtained in writing prior to the initiation of such activity. The request for approval shall describe the nature, scope, design, location, timetable and any other material aspect of the proposed activity in sufficient detail to permit Grantee to make an informed judgment as to its consistency with the purposes of this Conservation Restriction. Grantee Nantucket Land Council, Inc. and Grantee Nantucket Islands Land Bank shall jointly grant, condition or withhold approval in writing within thirty (30) days of receipt of Grantor's written request for approval. Grantor's written request for approval shall specifically recite the length of time provided by this Conservation Restriction for review and response by Grantee. Grantee’s approval shall not be unreasonably withheld, but it shall only be granted upon Grantee’s determination that the proposed activity is not inconsistent with the purposes of this Conservation Restriction. Failure of Grantee to respond in writing within thirty (30) days shall be deemed to constitute approval by Grantee of the request as submitted, so long as significant conservation values are not impaired by the use or activity and the request has set forth the provisions of this section relating to deemed approval after such thirty (30) days. Any notice, demand, request, consent, approval or communication that either party desires or is required to give to the other shall be in writing and either served personally or sent by first class mail, postage prepaid, addressed as follows: To Grantor: Hummock Pond of Nantucket Homeowners Association, Inc. 10 Ishmael Road, Nantucket, MA 02554 Nantucket, Massachusetts 02554 To Grantee: Nantucket Land Council, Inc. Post Office Box 502 Nantucket, Massachusetts 02554 Attn: Cormac Collier Nantucket Islands Land Bank 22 Broad Street Nantucket, MA 02554 Attn: Eric Savetsky or to such other address as either party from time to time shall designate by written notice to the other. F. Breach by Grantor. In the event that a potential breach of this Conservation Restriction by the Grantor, by a third party employed by the Grantor, or by a party under contract to the Grantor, comes to the attention of Grantee, and Grantee in the exercise of its best professional judgment concludes that a breach may have occurred or is occurring, Grantee shall notify Grantor in writing of such an alleged breach. Except in the event of an emergency which requires immediate action, Grantor shall have thirty (30) days - 10 of 24 Conservation Restriction V 17 Hummock Pond of Nantucket Homeowners Association, Inc. to Nantucket Land Council, Inc. and Nantucket Islands Land Bank or such additional time as Grantee deems reasonably necessary depending on the circumstances of the alleged breach - after delivery of such notice to initiate corrective actions, including restoration of the Premises, that are reasonably calculated to correct swiftly the conditions constituting such a breach. If Grantor fails to initiate such corrective action within such time, Grantee may in its discretion undertake such actions, including appropriate legal proceedings as are reasonably necessary to effect the correction of each such alleged breach. If a court of competent jurisdiction determines, or the Grantor acknowledges, that such correction resulted from Grantor’s violation of this Conservation Restriction, then Grantee’s costs of each such correction, including Grantee's expenses, court costs and legal fees, shall be paid by Grantor. G. Acts Beyond Grantor's Control; Third Party Breach. (1) Nothing contained in this Conservation Restriction shall be construed to entitle Grantee to bring any action against Grantor, or to recover from Grantor Grantee’s corrective or enforcement expenses, for any injury to or change in the Premises resulting from causes beyond Grantor's control, including, but not limited to the following: fire, flood, storm, earth movement and actions taken by agents of any governmental authority in the performance of their official duties, and from those breaches resulting from trespass or incursions on the Premises by a third party (including a Member) against which the Grantor has made reasonable independent efforts or joint efforts with the Grantee to cure such third party breaches in accordance with the provisions of the following subparagraph 2 below, or any prudent action taken by Grantor under emergency conditions to prevent, abate or mitigate significant injury to the Premises resulting from such causes. (2) In the case of a perceived breach by a third party (including a Member) either Grantor or Grantee shall notify the other in writing of such an alleged violation. If the Grantee, in the exercise of its best professional judgment, concludes that a breach may have occurred or is occurring, then - except in the event of an emergency which requires Grantee’s immediate corrective action, to which Grantor herewith agrees - Grantee and Grantor shall jointly notify the third party in writing of such an alleged breach. The Grantee and Grantor shall attempt to negotiate a remediation with the third party of the violation, such remediation to be completed at the third party’s expense. Remediation may include, but is not limited to, restoration of the Premises in such a manner as is reasonably calculated to correct swiftly the conditions constituting such a breach. If the third party fails to take action to remediate the breach, then the Grantee alone and/or with the assistance and cooperation of the Grantor may in its sole discretion undertake such actions against the third party, including appropriate proceedings in law and in equity as are reasonably necessary to effect the correction of each such breach. Grantee’s costs of corrective action, court costs and legal fees incurred in the manner described in this subparagraph may be recovered against the third party. 11 of 24 Conservation Restriction V 17 Hummock Pond of Nantucket Homeowners Association, Inc. to Nantucket Land Council, Inc. and Nantucket Islands Land Bank Nothing in this section shall limit Grantor’s right, independently or jointly with Grantee, to bring any action against third parties for injuries or damages to the Premises, or for violations of this Conservation Restriction, caused or proximately caused by third parties. H. Extinguishment (1) If circumstances arise in the future such as render the Purpose of this Conservation Restriction impossible to accomplish, this Conservation Restriction can only be terminated or extinguished, whether in whole or in part, by a court of competent jurisdiction under applicable law. If any change in conditions ever gives rise to extinguishment or other release of this Conservation Restriction under applicable law, then Grantee, on the first subsequent sale of the Premises following termination or extinguishment, shall be entitled to a portion of the proceeds in accordance with subparagraphs (2) and (3) of this Paragraph H, subject, however, to any applicable law which expressly provides for a different disposition of proceeds. Grantee shall use its share of the proceeds to advance the conservation of Nantucket lands and waters in a manner consistent with the conservation purposes set forth herein. (2) Grantor and Grantee agree that the grant of this Conservation Restriction gives rise to a real property right, immediately vested in Grantee, with a value that is determined by the ratio of the consideration recited herein for this Conservation Restriction to the assessed value ascribed by the Nantucket Assessor to the Premises on the effective date of this grant. Such ratio (hereinafter, the “proportionate value”) shall be included in the Baseline Documentation and shall remain constant over time. (3) Whenever all or any part of the Premises or any interest therein is taken by public authority under power of eminent domain or other act of public authority, then the Grantor and the Grantee shall cooperate in recovering the full value of all direct and consequential damages resulting from such action. All related expenses incurred by the Grantor and the Grantee shall first be paid out of any recovered proceeds, and the remaining proceeds (including, for purposes of this subparagraph, proceeds from any lawful sale of the Premises unencumbered by the restrictions hereunder) shall be distributed between the Grantor and the Grantee in shares equal to said proportionate value. If a less-than-fee interest is taken, the proceeds shall be equitably allocated according to the nature of the interest taken. The Grantee shall use its share of the proceeds in a manner consistent with the conservation purposes of this grant. I. Access. The Conservation Restriction hereby conveyed does not grant to the Grantee, to the public generally, or to any other person any right to enter upon the Premises, except as follows: there is hereby reserved the right of Grantor to convey a right of public access in accordance with subparagraph C(4) hereof. In addition, there is hereby granted to the Grantee and its representatives the right to enter the Premises at reasonable times and in a reasonable manner, for the purpose of 12 of 24 Conservation Restriction V 17 Hummock Pond of Nantucket Homeowners Association, Inc. to Nantucket Land Council, Inc. and Nantucket Islands Land Bank inspecting the Premises to determine compliance herewith, of enforcing this Conservation Restriction, and after thirty (30) days prior written notice of taking any and all actions with respect to the Premises as may be necessary or appropriate with or without order of court, to remedy, abate or otherwise enforce any violation hereof. Nothing herein, however, shall impair any rights of others or of the public generally now existing in any portion of the Premises. J. Legal and Equitable Remedies of Grantee. The rights hereby granted shall include the right to enforce this Conservation Restriction in accordance with its terms, including by appropriate legal proceedings and to obtain injunctive and other equitable relief against 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 Grantee shall have no adequate remedy at law), and shall be in addition to, and not in limitation of, any other rights and remedies available to Grantee. Grantor covenants and agrees to reimburse Grantee for those reasonable costs and expenses (including without limitation counsel fees) incurred by Grantee in enforcing this Conservation Restriction or in remedying or abating any violation thereof, provided Grantor has been determined by final judgment (after all appeal periods have passed) of a court of competent jurisdiction or by mutual agreement of Grantor and Grantee to be responsible for any such violations which resulted in Grantee’s incurring enforcement, remediation or abatement costs. By its acceptance of this Conservation Restriction, Grantee does not undertake any liability or obligation relating to the condition of the Premises not caused by the Grantee or Grantee’s agents. Any forbearance by Grantee in the manner and timing of its rights to enforce this Conservation Restriction or otherwise exercise its rights hereunder shall not be deemed or construed to be a waiver of such rights. K. Severability. If any provision of this Conservation Restriction shall to any extent be held invalid, the remainder shall not be affected and shall remain in full force and effect. L. Duration and Assignability. The burdens of this Conservation Restriction shall run with the Premises in perpetuity and shall be enforceable in perpetuity against the original Grantor, all successors and assigns of the original Grantor holding any interest in the Premises, and third parties as described in this Conservation Restriction. Grantee is hereby authorized to record or file any notices or instruments appropriate to assuring the perpetual enforceability of this Conservation Restriction, and the original Grantor, and all successors in title or interest to the Premises, to the extent permissible under applicable law, appoints Grantee its attorney-in-fact to execute, acknowledge and deliver any such instruments on its behalf. Without limiting the 13 of 24 Conservation Restriction V 17 Hummock Pond of Nantucket Homeowners Association, Inc. to Nantucket Land Council, Inc. and Nantucket Islands Land Bank foregoing, the original Grantor and all successors in title or interest to the Premises, agrees to execute any such instruments upon request. The benefits of this Conservation Restriction shall be in gross and assignable, but only to an entity or governmental unit able and authorized to enforce such restrictions , which entity shall also have purposes similar to those of Grantee and which encompass the purposes set forth in this Conservation Restriction. Such entity or governmental unit must qualify 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 Massachusetts General Laws as an eligible donee to receive this Conservation Restriction directly. Any assignment of benefits by Grantee (or successor) must require the transferee to carry out the purposes of this Conservation Restriction. Furthermore, no assignment by the Grantee of this Conservation Restriction shall be effective unless previously approved in writing by the Nantucket Planning Board and by the Grantor, whose approval will not be unreasonably withheld. Any assignment shall be in accordance with Article 97 of the Amendments to the Massachusetts Constitution if applicable. M. Effective Date. While the Grantor may execute this instrument prior to obtaining title to the Premises and the receipt of final acceptance and approvals of this Conservation Restriction, this Conservation Restriction shall be effective only when Grantor has obtained such title, Grantor and Grantee have both executed this Conservation Restriction, the administrative approvals required by Section 32 of Chapter 184 of the General Laws have been obtained, and this Conservation Restriction has been filed for registration at the Nantucket Registry District of the Land Court and noted upon the Certificate of Title for the Premises. The Grantee shall file this instrument for registration in timely manner at the Nantucket Registry District of the Land Court and note it upon the Certificate of Title for the Premises. N. Subsequent Transfers. Grantor agrees: (1) to incorporate by reference the terms of this Conservation Restriction into any deed or other legal instrument which divests Grantor of any interest in all or a portion of the Premises, including, without limitation, a leasehold interest, and (2) to make reference to this Conservation Restriction in any executory contract for the transfer of any interest in the Premises. Grantor further agrees to give written notice to Grantee of all transfers of any interest in all or a portion of the Premises and to provide such notice forthwith upon every transfer if such notice has not been given prior to a transfer. Such notice to Grantee shall include the name, address and telephone number of the transferee and his/her legal representative, if any. Failure of Grantor to comply with this Paragraph N shall not impair the validity of this Conservation Restriction or limit its enforceability in any way. 14 of 24 Conservation Restriction V 17 Hummock Pond of Nantucket Homeowners Association, Inc. to Nantucket Land Council, Inc. and Nantucket Islands Land Bank O. Estoppel Certificates. Upon request by Grantor, Grantee shall within twenty (20) days execute and deliver to Grantor any document which certifies the status of Grantor's compliance with any obligation of Grantor contained in this Conservation Restriction and which otherwise evidences the status of this Conservation Restriction, as may be reasonably requested by Grantor, including a so-called estoppel certificate if applicable in form suitable for registration with Nantucket Registry District and notation upon the Certificate of Title then outstanding for the Premises. P. Limitation of Grantor Liability. The Grantor shall not be liable for violations occurring after its, his or her ownership. Liability for any acts or omissions not excepted by operation of Paragraphs F or G hereof occurring prior to any transfer and liability preceding any transfer if in violation of this Conservation Restriction and not excepted by operation of Paragraphs F or G hereof shall survive the transfer. Irrespective of the above, any new owner of the Premises shall cooperate in the restoration of the Premises or removal of violations caused by prior owner(s). Q. Merger. Grantor and Grantee agree that the terms of this conservation restriction shall survive any merger of the fee and conservation restriction interests in the Premises. Grantor and Grantee further agree that, should the Nantucket Land Council, Inc. or the Nantucket Islands Land Bank (or any successor in interest to the Nantucket Land Council, Inc. or the Nantucket Islands Land Bank) come to own all or a portion of the fee interest subject to this Conservation Restriction, (i) Grantor, if retaining a portion of the fee interest and Grantee shall observe and be bound by the obligations and the restrictions imposed upon the Premises by this Conservation Restriction; (ii) this Conservation Restriction shall not be extinguished through the doctrine of merger in whole or in part in view of the public interest in its enforcement; (iii) Grantee shall be considered to have reserved its right to transfer a Conservation Restriction; and (iv) the Grantee as promptly as practicable prior to the acquisition of the fee shall assign the Grantee's interest in this Conservation Restriction of record to another Grantee in conformity with the requirements of this Paragraph Q., subject to prior written approval by the Nantucket Planning Board and by the Grantor, whose approval will not be unreasonably withheld. The instrument of assignment shall refer to the provisions of this subparagraph, and shall contain confirmatory language suitable to reserve a right to re-impose this Conservation Restriction to the extent, if any, necessary to continue it in force. R. Successor Grantee. If Grantee shall cease to exist or to be a qualified organization under Section 170(h) of the Internal Revenue Code of 1986, as amended, or to be authorized to acquire and hold conservation restrictions under M.G.L. Chapter 184, Section 32, as amended, and a prior assignment of this Conservation Restriction has not been made, then Grantee's rights and obligations under this Conservation Restriction shall become vested in and fall upon the first (by order of listing) of the 15 of 24 Conservation Restriction V 17 Hummock Pond of Nantucket Homeowners Association, Inc. to Nantucket Land Council, Inc. and Nantucket Islands Land Bank below-named organizations which agrees to acceptance of the assignment and which qualifies for assignment under the terms of this paragraph, and such vesting shall have been previously approved in writing by the Nantucket Planning Board: (a) Nantucket Conservation Foundation, Inc., Nantucket, Massachusetts (b) The Massachusetts Audubon Society, Lincoln, Massachusetts (c) Nantucket Islands Land Bank, Nantucket, Massachusetts In the event that none of the above-named organizations agrees to acceptance and qualifies for assignment, Grantee's rights and obligations shall become vested in such other organization, previously approved in writing by the Nantucket Planning Board and by the Grantor, whose approval will not be unreasonably withheld, as a court of competent jurisdiction shall direct under the doctrine of cy pres. Any assignment shall be in accordance with Article 97 of the Amendments to the Massachusetts Constitution if applicable. S. Restriction in Perpetuity. The provisions hereof shall inure to and be binding upon the heirs, executors, devisees, administrators, successors and assigns as the case may be of the parties hereto and shall be restrictions running with the land in perpetuity. The term “Grantor” herein, unless the context or wording otherwise requires, shall include all successors and assigns of the original Grantor Hummock Pond of Nantucket Homeowners Association, Inc. The term “Grantee” herein, unless the context or wording otherwise requires, shall include all successors and assigns of the original Grantee Nantucket Land Council, Inc. and Nantucket Land Bank Commission. T. Amendment. If circumstances arise under which an amendment to or modification of this Conservation Restriction would be appropriate, Grantor and Grantee may jointly amend this Conservation Restriction; provided that no amendment shall be allowed that will affect the qualification of this Conservation Restriction or the status of Grantee under any applicable laws, including Section 170(h) of the Internal Revenue Code of 1986, as amended, or Sections 31-33 of Chapter 184 of the General laws of Massachusetts. Any amendments to this conservation restriction shall occur only in exceptional circumstances. The Grantee will consider amendments only to correct an error or oversight, to clarify an ambiguity, or where there is a net gain in conservation value. All expenses of all parties in considering and/or implementing an amendment shall be borne by the persons or entity seeking the amendment. Any amendment shall be consistent with the purposes of this Conservation Restriction, shall not affect its perpetual duration, shall be approved by the Secretary of Energy and Environmental Affairs and the Town of Nantucket, and if applicable, shall comply with the provisions of Art. 97 of the Amendments to the Massachusetts Constitution, and any gift, grant or funding requirements. Any amendment shall be filed for registration at the Nantucket Registry District of the Land Court and noted upon the Certificate of Title for the Premises. 16 of 24 Conservation Restriction V 17 Hummock Pond of Nantucket Homeowners Association, Inc. to Nantucket Land Council, Inc. and Nantucket Islands Land Bank U. Controlling Law The interpretation and performance of this Conservation Restriction shall be governed by the laws of the Commonwealth of Massachusetts. V. Liberal Construction. Any general rule of construction to the contrary notwithstanding, this Conservation Restriction shall be liberally construed in favor of the grant to effect the purpose of this Conservation Restriction and the policy and purposes of Massachusetts General Laws Chapter 184, Sections 31-33. If any provision in this instrument is found to be ambiguous, any interpretation consistent with the purpose of this Conservation Restriction that would render the provision valid shall be favored over any interpretation that would render it invalid. 17 of 24 Conservation Restriction V 17 Hummock Pond of Nantucket Homeowners Association, Inc. to Nantucket Land Council, Inc. and Nantucket Islands Land Bank The foregoing Conservation Restriction is hereby executed by the undersigned, as a sealed instrument under Massachusetts law. Executed and sealed on __________________________, 2011. Hummock Pond of Nantucket Homeowners Association, Inc.: By: _________________________ By: _________________________ Officers Name: Officers Name: Its: President Its: Treasurer COMMONWEALTH OF MASSACHUSETTS Nantucket, ss. On this ___ day of __________, 2011, before me, the undersigned notary public, personally appeared __________, proved to me through satisfactory evidence of identification, which was ____________________ , to be the person whose name is signed on the preceding or attached document, and acknowledged to me that he signed it voluntarily for its stated purpose. ___________________________________ Notary Public My Commission Expires: 18 of 24 Conservation Restriction V 17 Hummock Pond of Nantucket Homeowners Association, Inc. to Nantucket Land Council, Inc. and Nantucket Islands Land Bank ACCEPTANCE OF GIFT BY THE NANTUCKET LAND COUNCIL, INC. The gift of the above Conservation Restriction from, Hummock Pond of Nantucket Homeowners Association, Inc., is hereby accepted this ____day of _________, 2011. Nantucket Land Council, Inc. By: ___________________________ _____________________________ Officer’s Name Officer’s Name COMMONWEALTH OF MASSACHUSETTS Nantucket, ss. On this ___ day of __________, 2011, before me, the undersigned notary public, personally appeared _____________________________, 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. ___________________________________ (Print Name) Notary Public My Commission Expires: COMMONWEALTH OF MASSACHUSETTS Nantucket, ss. On this ___ day of __________, 2011, before me, the undersigned notary public, personally appeared ____________________, 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. ___________________________________ (Print Name) Notary Public My Commission Expires: 19 of 24 Conservation Restriction V 17 Hummock Pond of Nantucket Homeowners Association, Inc. to Nantucket Land Council, Inc. and Nantucket Islands Land Bank ACCEPTANCE OF GIFT BY THE NANTUCKET ISLANDS LAND BANK The gift of the above Conservation Restriction from, Hummock Pond of Nantucket Homeowners Association, Inc., is hereby accepted this ____day of __________, 2011. Nantucket Islands Land Bank. By: ___________________________ _____________________________ Commissioner’s Name Commissioner’s Name ___________________________ _____________________________ Commissioner’s Name Commissioner’s Name ___________________________ Commissioner’s Name COMMONWEALTH OF MASSACHUSETTS Nantucket, ss. On this ___ day of __________, 2011, before me, the undersigned notary public, personally appeared _____________________________, 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. ___________________________________ (Print Name) Notary Public My Commission Expires: COMMONWEALTH OF MASSACHUSETTS Nantucket, ss. On this ___ day of __________, 2011, before me, the undersigned notary public, personally appeared ____________________, 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. ___________________________________ (Print Name) Notary Public My Commission Expires: 20 of 24 Conservation Restriction V 17 Hummock Pond of Nantucket Homeowners Association, Inc. to Nantucket Land Council, Inc. and Nantucket Islands Land Bank APPROVAL BY SELECTMEN OF THE TOWN OF NANTUCKET We, the undersigned members of the Board of Selectmen of the Town of Nantucket, Massachusetts, hereby certify that at a meeting held on _________________, 2011, we voted to approve the foregoing Grant of Conservation Restriction by, Hummock Pond of Nantucket Homeowners Association, Inc., to the Nantucket Land Council, Inc. and Nantucket Islands Land bank pursuant to Massachusetts General Laws, Chapter 184, Section 32, and also hereby certify at said meeting we made a finding that this restriction is in the public interest. Board of Selectmen of the Town of Nantucket __________________________ __________________________ __________________________ __________________________ ___________________________ COMMONWEALTH OF MASSACHUSETTS Nantucket, ss. On this ___ day of _________, 2011, before me, the undersigned notary public, personally appeared ___________________________________________ ______________________________________________________________, proved to me through satisfactory evidence of identification, which were _______________________________________________ , to be the person(s) whose name is signed on the preceding or attached document, and acknowledged to me that (he)(she) signed it voluntarily for its stated purpose. ___________________________________ (Print Name) Notary Public My Commission Expires: 21 of 24 Conservation Restriction V 17 Hummock Pond of Nantucket Homeowners Association, Inc. to Nantucket Land Council, Inc. and Nantucket Islands Land Bank APPROVAL BY SECRETARY OF ENERGY AND ENVIRONMENTAL AFFAIRS, COMMONWEALTH OF MASSACHUSETTS The undersigned, Secretary of Energy and Environmental Affairs of the Commonwealth of Massachusetts, hereby certifies that the foregoing Grant of Conservation Restriction by , Hummock Pond of Nantucket Homeowners Association, Inc. to the Nantucket Land Council, Inc. and the Nantucket Islands Land Bank has been approved in the public interest pursuant to Massachusetts General Laws, Chapter 184, Section 32. Said approval 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. _______________ _______________________________________ Date Secretary of Energy and Environmental Affairs COMMONWEALTH OF MASSACHUSETTS , ss. On this ___ day of _________, 2011, before me, the undersigned notary public, personally appeared ____________________________________, 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. ___________________________________ (Print Name) Notary Public My Commission Expires: 22 of 24 Conservation Restriction V 17 Hummock Pond of Nantucket Homeowners Association, Inc. to Nantucket Land Council, Inc. and Nantucket Islands Land Bank   EXHIBIT A  Description of Premises Lots 47 and 78 shown on Land Court Plan 35893-H filed with Certificate No. 8638 at the Nantucket Registry District of the Land Court. For Grantor’s title see Certificate of Title No. ____ at the Nantucket Registry District of the Land Court. 23 of 24 Conservation Restriction V 17 Hummock Pond of Nantucket Homeowners Association, Inc. to Nantucket Land Council, Inc. and Nantucket Islands Land Bank EXHIBIT B  Copy of Land Court Plan 35893-H Showing the Premises (Lots 47 and 78 on the Plan) Follows on the Next Page 24 of 24 Conservation Restriction V 17 Hummock Pond of Nantucket Homeowners Association, Inc. to Nantucket Land Council, Inc. and Nantucket Islands Land Bank Board of Dkeskors Karen K. Uorchert President laiif A. Bennett \'ice President \Irilliam VWet Mce President Howard N. Blitrnan Treasurer Susan E. Robinsor! Clerk & Asrisi~rtr Treasure; Larj Bred<iran Williarn S. Brenizer Karen K. Cixk \Villi'il!iam M. Crozier, 3r. P'ii'iip B . Day Lucy S. DiXon Christine Donelan Roberr Friedman Nancy Glilespie Wsde Greene Jean Haffenrsffer Mcry Heller Charles A. Kiivert 111 Lauze! Ried Langworthy Peter McCaus!aed Eileen P. McG:ath Pia 6. Mu~hy Swan R. Shapizo Carl Fk. Sjoiund H. Brooks Si?ii:n Lars 0. Soderberg Peter -W&~~CUS Hosz.csrlrry Director Suzanne Muelier Comac Collier Executive Director Emily L. MacKinnon Resource Ecologist Linda Spe1-y Developmerrl Director Nantucket Land Council, Inc. Six Ash Lane Post Office Box 502 Kanmcltet, bZassachusetts 02354 508 228-2818 Fzx 508 228-6456 nlc@nan-tucketlandcouncii.o~g wm:nant~lckedandcozncil. org Rick A&erton, Ch~mm Nmwcket Board sf Selecmea? 16 Broad Street Nmacket, MA 02554 Dear Mr. Athe&on, The Nmtucket Ed Council has submieed for yow review a conservation sest~ction donated by Debmk and James McIntosk sf I2 Uncziaena Street in Sudside, Nanhcket bfassachuse&s. The Consewation restP1cPion w<ll provide ~i~ificant public benefit by protectkg gromdw-ater, native plant md ~ldlife, scelc views, and is consistent with si@ficmt open space reco endations outlined in the Nanbcket Master Plan and the Swfside Area Neighborhood Plm. The enclosed Tow- of Nmithcket GIS plan provides Mher location infomation. I would be happy to mswer my questions that you may have. Planning Protec~ng Preserving Town of Nantucket Web GIs - Printable Map file:///C:/Docurnents and Se~/Comc/Desktop/PrintableMap.aspxh~ Town of Nantucket Web GIs Prop ID 80 91 Address 12 UNCATENA ST Owner MCINTOSH JAMES R & DEBORAH H 54 PIPPIN DR GLASTONBURY, CT 6033 Sale Date 09/09/1996 Sale Price $0 Lot Size 1.15 acres NOT A LEGAL DOCUMENT For general reference only: Important caveats which must be considered when using this data are available from the Nantucket GIs Coordinator. Disclaimer The information displayed on this or any other map produced by The Town of Nantucket is for reference purposes only. The Town of Nantucket does not guarantee the accuracy of the data. Users are responsible for determining the suitability for individual needs. All information is from the Town of Nantucket Geographic: Information System (GIS) database. Town of Nantucket, Massachusetts Map Composed 9/19/2011 CopyrigM 2005 Town of Nantucket, MA. All rigMs reserved. Developed by AppGeo 1 Conservation Restriction Deborah and James McIntosh to Nantucket Land Council, Inc. Version 4 9.12.11 CONSERVATION RESTRICTION Deborah H. & James R. McIntosh 12 Uncatena Street, Nantucket MA to Nantucket Land Council, Inc. We Deborah & James McIntosh of 437 East Carriage Drive, Glastonbury, CT, 06033, (“Grantor”) acting pursuant to Sections 31, 32, and 33 of Chapter 184 of Massachusetts General Laws, hereby grant with quitclaim covenants to the Nantucket Land Council, Inc., a Massachusetts non-profit corporation with a principal place of business at 6 Ash Lane, Nantucket, Massachusetts 02554, and its successors and permitted assigns ("Grantee"), in perpetuity and exclusively for conservation purposes, the following described Conservation Restriction on a certain parcel of land located in the Surfside area in the Town of Nantucket, Massachusetts, constituting approximately 1.15 acres, and more particularly described as set forth in Exhibit A. A plan described as Plan Book 2 Page 60 by Henry Wilson dated May 17, 1889, depicts the parcel which is subject to the Conservation Restriction hereunder and is attached hereto as Exhibit B (the "Premises). For Grantor’s title see, Book 208 Page 322 and Book 514 Page 246 at the Nantucket Registry District. Grantee warrants that Grantee is a charitable organization described in Section 501(c)(3) of the Internal Revenue Code of 1986, as amended, and the regulations thereunder (the “Code”), whose primary purpose is “To encourage, support and engage in research, study, and education regarding land in the County of Nantucket …and to engage in, institute, defend and to support in any legal manner or way any litigation or administrative procedures regarding such land, its ownership and utilization; and to engage in such other activities as are necessary or reasonably appropriate thereto.” Grantee represents that Grantee is a “qualified organization,” as that term is defined in Section 170(h)(3) of the Code; and Grantee has received a determination letter from the Internal Revenue Service dated November 24, 2003, to the effect that Grantee is a “publicly- supported” organization described in Section 509(a)(1) and Section 170(b)(A)(vi) of the Code, and is not a private foundation under Section 509(a)(1) of the Code; and 2 Conservation Restriction Deborah and James McIntosh to Nantucket Land Council, Inc. Grantor and Grantee recognize the natural, scenic, and special character of the Premises and have the common purpose of the conservation and protection in perpetuity of the Premises through the use of restrictions on the Premises; NOW, THEREFORE, KNOW ALL PERSONS BY THESE PRESENTS, in consideration of the above and mutual covenants, terms, conditions, and restrictions contained herein, and pursuant to Section 170(h) of the Code and the laws of the Commonwealth of Massachusetts, including Massachusetts General Laws. Chapter 184, Sections 31-33, Grantor hereby voluntarily grants and conveys to Grantee and its successors and permitted assigns a conservation restriction (the “Restriction” or “Conservation Restriction”) in perpetuity and for conservation purposes over the Premises of the nature and character and to the extent hereinafter set forth. Grantor herein declares that the Premises shall be held, mortgaged, encumbered, transferred, sold, conveyed, used, and occupied subject to the covenants, conditions, and restrictions hereinafter set forth, which covenants, conditions, and restrictions shall be deemed to run with the land in perpetuity and to burden the Premises in perpetuity. A. PURPOSES: This Conservation Restriction is defined in and authorized by Sections 31- 33 of Chapter 184 of the Massachusetts General Laws and otherwise by law. The purpose of this Conservation Restriction is to assure that the Premises will be maintained substantially in its current condition in perpetuity and for conservation purposes, predominantly in a natural, scenic and undeveloped condition, and to prevent any use or change that would materially impair or interfere with its conservation and preservation values. The specific conservation values of the Premises are documented in a report to be kept on file at the offices of Grantee and incorporated herein by this reference, which documentation (“Baseline Documentation”) the parties agree provides an accurate representation of the Premises as of the effective date of this grant and which is intended to serve as an objective information baseline for monitoring compliance with the terms of this grant; and This Conservation Restriction is intended to protect the aforementioned natural and scenic resources of the Premises and Nantucket by prohibiting all buildings; by prohibiting practices such as commercial agriculture and raising of animals which can damage or alter natural plant communities; and by encouraging conservation of the land in its predominantly vacant and undeveloped condition. 3 Conservation Restriction Deborah and James McIntosh to Nantucket Land Council, Inc. These values include the following: • Open Space Preservation. The protection of the Premises contributes to the protection of the scenic and natural character of surrounding and abutting permanently protected land and other Nantucket protected lands, and the protection of the Premises will enhance the open-space value of these lands, provide significant open space corridors and improve the overall public benefit and value of open space in the neighborhood. * Water Quality. The Premises are located on Nantucket Island which has a sole source aquifer for the use of its inhabitants. Protection of the Premises will further protect the water quality of the aquifer and surrounding wells. Protection of the premises will also reduce nutrient and pollutant leaching and runoff which will protect down gradient water sources including the Atlantic ocean to the south. • Scenic Protection. The Premises abut a walking path (Uncatena Street) and afford the public with uninterrupted views of pristine vegetation and open space. Development in the local area has increased dramatically in the past twenty years and protection of the Premises will provide the public with a protected open space vista to be enjoyed in perpetuity. • Protection of Wildlife Habitat. The entire Premises falls within an area designated as “Priority Habitat for State-Protected Rare Species” by the Massachusetts Natural Heritage Program. The Premises provide a unique natural habitat for a wide variety of plant and animal species. The Premises are comprised of a coastal shrub understory consisting of huckleberry, viburnum, black cherry, low bush blueberry which provide unique foraging and nesting habitat to bird, mammal and insect species. • Furtherance of Government Policy. Preservation of the Premises is pursuant to clearly delineated conservation policy expressed in Nantucket’s Master Plan, adopted by Nantucket’s voters at the Annual Town Meeting in April 2009, which states in the Town of Nantucket 2007 Open Space and Recreation Plan as Goal/Objectives 1C: “The town should encourage the use of creative regulatory and non-regulatory land protection tools such as conservation restrictions, tax abatements, gifts and zoning measures.”; and in The Nantucket Comprehensive Community Plan (NCCP), including the following objectives therein: Objective 4.1, “To aggressively acquire land and conservation restrictions to protect natural ecosystems;” Objective 4.2, “To encourage land management activities by the Land Bank and nonprofit entities to provide permanent resource protection;” Preservation of the Premises as open space is further pursuant to clearly delineated governmental conservation policy in accordance with "Nantucket's 4 Conservation Restriction Deborah and James McIntosh to Nantucket Land Council, Inc. Goals and Objectives for Balanced Growth" which was adopted in November 1990 by Town Meeting and states as Objective A-1: "To identify and acquire critical open spaces through outright ownership or by less-than-fee means, such as conservation restrictions, scenic easements, and the purchase of development rights, in order to complete the Island's open space network Preservation of the Premises as open space is further pursuant to clearly delineated governmental conservation policy in accordance with the Town of Nantucket Surfside Area Plan which was adopted by the Nantucket Planning and Economic Development Commission on August 3, 2009, and states in Section 6.3. “Support the use of conservation restrictions and other conservation tools as a means to preserve open space situated on private property.” B. Prohibited Uses. Except for reserved rights as set forth in Paragraph C below, neither Grantor, nor the heirs, devisees, successors or assigns of Grantor, will perform or give permission to others to perform the following acts or uses which are prohibited on, under, or above the Premises: (1) The construction or placement of any temporary or permanent building, landing strip, helicopter landing area, tennis court, mobile home, swimming pool, asphalt or concrete pavement, stadium, bleachers, outdoor lighting equipment, ropes course, sign, billboard, or other advertising display, utility pole, utility tower, utility conduit or utility line, septic system, or any other temporary or permanent structure on, above, or under the Premises; (2) Excavating, mining, dredging or removing from the Premises of soil, loam, peat, gravel, sand, rock or other mineral resource or natural deposit except as necessary for proper drainage or soil conservation and then only in a manner which does not impair the Purpose of this Conservation Restriction; (3) Placing, filling, storing or dumping on the Premises of soil, refuse, trash, boats, trailers, vehicle bodies or parts, rubbish, debris, junk, waste or other substance or material whatsoever or the installation of underground tanks; (4) Cutting, removing or otherwise destroying trees, grasses or other vegetation on the Premises; (5) Activities detrimental to drainage, flood control, water conservation, water quality, erosion control or soil conservation; (6) The use of motorcycles, motorized trail bikes, snowmobiles and all other motorized vehicles and activities; 5 Conservation Restriction Deborah and James McIntosh to Nantucket Land Council, Inc. (7) Division or subdivision of the Premises, except for merging all or a portion of the Premises with abutting property or properties; (8) All commercial and municipal structures and all commercial or industrial activities and uses; (9) Any work, including, but not limited to, filling and/or construction of roads, in wetlands as defined by the Wetlands Protection Act (Chapter 131, Section 40) or the Nantucket Wetlands Bylaw (Chapter 136 of the Nantucket Code); (10) The use of the Premises for more than de minimis commercial recreation, business, residential or industrial use of the Premises. (11) The use of pesticides and fertilizers; and (12) Any other use of the Premises or activity which would materially impair conservation interests unless necessary for the protection of the conservation interests that are the subject of this Conservation Restriction. C. Reserved Rights. The provisions of Paragraph B notwithstanding, the following acts and uses by Grantor and the heirs, devisees, successors and assigns of Grantor are permitted provided they do not materially impair the conservation interests or purposes of this Conservation Restriction or are not considered inconsistent with the intent of this grant: (1) The right to excavate and remove soil, gravel or other mineral resource or natural deposit only as may be necessary for the conduct of those uses and activities permitted in this Conservation Restriction, or for the maintenance of good drainage, soil conservation practices or other permissible use of the Premises; provided that following the completion of such use or activity any disturbed area shall be restored to its prior undisturbed condition; (2) The right to excavate a known archaeological site identified by and under the direction of a qualified organization such as the Massachusetts Historical Commission according to Massachusetts Regulations 950 CMR 70; (3) The right to use, clear, and maintain trails and paths; (4) The right to conduct any activity, such as selective cutting, mowing or burning, which is used to manage the habitat of any threatened or rare species, as identified by the Massachusetts Natural Heritage Program or its successors, and/or any other natural plant community on Nantucket and/or to enhance or manage wildlife. Such activity shall be undertaken only with the express written permission of Grantee in accordance with Paragraph E and under the guidance of Grantee, which may include conditions or limitations to protect wildlife, natural 6 Conservation Restriction Deborah and James McIntosh to Nantucket Land Council, Inc. vegetation and environmental systems, and such activity may include the limited erection of nest boxes or osprey poles; (5) The right to plant indigenous species of plants which are native to Nantucket or are found planted in nearby Surfside areas as long as they do not detract from the overall purpose of the restriction, nor present an ornamental or manicured material change to the substantially natural and pristine nature of the Premises; (6) The right to control noxious or invasive plant and animal species by mechanical and/or chemical means on the Premises only pursuant and subject to a plan approved by Grantee in accordance with Paragraph E hereof; (7) The right to walk and conduct other passive educational and recreational activities on foot; (8) The right to remove diseased and dead trees and the right to cut, trim, and remove trees grasses, and other vegetation on the Premises only in a manner that maintains the character of the natural vegetation existing on the Premises on the date of this conservation restriction. (9) The right to survey and to conduct scientific research, and the right to maintain bee hives; (10) The right to erect signs which are no greater than twelve (12) inches square, to inform and educate the public; (11) The right to erect and maintain fence posts and post and rail fences; (12) The use of motor vehicles only as necessary and solely for exercising any of the reserved rights in this Paragraph C or as necessary by the police, firefighters, Board of Health agents, Department of Environmental Protection personnel, or other governmental agents in carrying out their lawful duties. Certain reserved rights under this Paragraph C may require permits from one or more public agencies. The inclusion of any such rights herein does not imply that Grantee or the Commonwealth takes any position on whether any such permit should be issued. D. Prior Notice to Grantee. Grantor agrees to notify Grantee, in writing, before exercising any right reserved herein, the exercise of which may have a significant impact upon the conservation interests associated with the Premises. E. Notice and Approval. Whenever notice to or approval by Grantee is required under the provisions of Paragraphs B, C, or D, Grantor shall notify Grantee in 7 Conservation Restriction Deborah and James McIntosh to Nantucket Land Council, Inc. writing not less than sixty (60) days prior to the date Grantor intends to undertake the activity in question; however, Grantee may waive or lessen the required period of time, provided said waiver is obtained in writing prior to the initiation of such activity. The notice shall describe the nature, scope, design, location, timetable and any other material aspect of the proposed activity in sufficient detail to permit Grantee to make an informed judgment as to its consistency with the purposes of this Conservation Restriction. Where Grantee's approval is required, Grantee shall grant or withhold its approval in writing within sixty (60) days of the receipt of Grantor's written request. Grantor's written request shall specifically recite the length of time provided by this Conservation Restriction for review and response by Grantee. Grantee’s approval shall not be unreasonably withheld, but it shall only be granted upon a showing that the proposed activity shall not materially impair the purposes of this Conservation Restriction. Failure of Grantee to respond in writing within sixty (60) days shall be deemed to constitute approval by Grantee of the request as submitted, so long as there exists no violation hereunder and the request sets forth the provisions of this section relating to deemed approval after sixty (60) days in the notice. Any notice, demand, request, consent, approval or communication that either party desires or is required to give to the other shall be in writing and either served personally or sent by first class mail, postage prepaid, addressed as follows: To Grantor: Deborah H. and James R. McIntosh 437 East Carriage Drive, Glastonbury, CT, 06033 Nantucket, Massachusetts 02554 With a copy to: To Grantee: Nantucket Land Council, Inc. Post Office Box 502 Nantucket, Massachusetts 02554 Attn: Cormac Collier or to such other address as either party from time to time shall designate by written notice to the other. F. Breach. In the event that a breach of these restrictions by Grantor or by a third party comes to the attention of Grantee, Grantee shall notify Grantor in writing of such a breach. Except in the event of an emergency which requires immediate action, Grantor shall have thirty (30) days or such additional time as may be reasonably necessary depending on the circumstances of the breach after receipt of such notice to undertake actions including restoration of the Premises that are reasonably calculated to correct swiftly the conditions constituting such a breach. If Grantor fails to take such corrective action, Grantee may at its discretion undertake such actions, including appropriate legal proceedings as are reasonably necessary to effect the correction of each such 8 Conservation Restriction Deborah and James McIntosh to Nantucket Land Council, Inc. breach, and the cost of each such correction, including Grantee's expenses, court costs and legal fees, shall be paid by Grantor. G. Acts Beyond Grantor's Control. Nothing contained in this Conservation Restriction shall be construed to entitle Grantee to bring any action against Grantor for any injury to or change in the Premises resulting from causes beyond Grantor's reasonable control, including, but not limited to, fire, flood, storm, earth movement,, actions taken by agents of any governmental authority in the performance of their official duties, and acts caused by trespass on the Premises not affirmatively contributed to by acts or omissions of Grantor, or from any prudent action taken by Grantor under emergency conditions to prevent, abate or mitigate significant injury to the Premises resulting from such causes. H. Extinguishment. (1) If circumstances arise in the future such as render the Purpose of this Conservation Restriction impossible to accomplish, this Conservation Restriction can only be terminated or extinguished, whether in whole or in part, by a court of competent jurisdiction under applicable law. If any change in conditions ever gives rise to extinguishment or other release of this Conservation Restriction under applicable law, then Grantee, on a subsequent sale, exchange or involuntary conversion of the Premises, shall be entitled to a portion of the proceeds in accordance with subparagraph (2) of this Paragraph H, subject, however, to any applicable law which expressly provides for a different disposition of proceeds. Grantee shall use its share of the proceeds to advance the conservation of Nantucket lands and waters in a manner consistent with the conservation purposes set forth herein. (2) Proceeds. Grantor and Grantee agree that the grant of this Conservation Restriction gives rise to a real property right, immediately vested in Grantee, with a fair market value that is at least equal to the proportionate value that this Conservation Restriction, determined at the time of the grant, bears to the value of the unrestricted Premises at that time. Such proportionate value of Grantee's property right shall remain constant over time. (3) Whenever all or any part of the Premises or any interest therein is taken by public authority under power of eminent domain or other act of public authority, then the Grantor and the Grantee shall cooperate in recovering the full value of all direct and consequential damages resulting from such action. All related expenses incurred by the Grantor and the Grantee shall first be paid out of any recovered proceeds, and the remaining proceeds (including, for purposes of this subparagraph, proceeds from any lawful sale of the property unencumbered by the restrictions hereunder or any other property received in connection with an exchange or involuntary conversion of the Premises) shall be distributed between the Grantor and the Grantee in shares equal to said proportionate value. If a less-than-fee interest is taken, the proceeds shall be 9 Conservation Restriction Deborah and James McIntosh to Nantucket Land Council, Inc. equitably allocated according to the nature of the interest taken. The Grantee shall use its share of the proceeds like a continuing trust in a manner consistent with the conservation purposes of this grant. I. Access. The Conservation Restriction hereby conveyed does not grant to the Grantee, to the public generally, or to any other person any right to enter upon the Premises, except as follows: there is hereby granted to the Grantee and its representatives the right to enter the Premises at reasonable times and in a reasonable manner, for the purpose of inspecting the Premises to determine compliance herewith, of enforcing this Conservation Restriction, and after thirty (30) days prior written notice of taking any and all actions with respect to the Premises as may be necessary or appropriate with or without order of court, to remedy, abate or otherwise enforce any violation hereof. Nothing herein, however, shall impair any rights of others or of the public generally now existing in any portion of the Premises. J. Legal Remedies of Grantee. 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 Grantee shall have no adequate remedy at law), and shall be in addition to, and not in limitation of, any other rights and remedies available to Grantee; Grantor and thereafter the successors and assigns of Grantor covenant and agree to reimburse 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, provided Grantor has been determined by final judgment (after all appeal periods have passed) of a court of competent jurisdiction or by mutual agreement of Grantor and Grantee to be responsible for any such violations; By its acceptance of this Conservation Restriction, Grantee does not undertake any liability or obligation relating to the condition of the Premises not caused by the Grantee or Grantee’s agents. Any forbearance by Grantee in the manner and timing of its rights to enforce this Conservation Restriction or otherwise exercise its rights hereunder shall not be deemed or construed to be a waiver of such rights. K. Severability. If any provision of this Conservation Restriction shall to any extent be held invalid, the remainder shall not be affected and shall remain in full force and effect. L. Duration and Assignability. The burdens of this Conservation Restriction shall run with the Premises in perpetuity and shall be enforceable in perpetuity against Grantor and all successors and assigns of Grantor holding any interest in the Premises. Grantee is hereby authorized to record or file any notices or 10 Conservation Restriction Deborah and James McIntosh to Nantucket Land Council, Inc. instruments appropriate to assuring the perpetual enforceability of this Conservation Restriction, and Grantor, ,on behalf of themselves and their successors and assigns, to the extent permissible under applicable law, appoints Grantee their attorney-in-fact to execute, acknowledge and deliver any such instruments on their behalf. Without limiting the foregoing, Grantor and all successors in title or interest to the Premises, agrees to execute any such instruments upon request. The benefits of this Conservation Restriction shall be in gross and assignable, but only to an entity or governmental unit able and authorized to enforce such restrictions, which entity shall also have purposes similar to those of Grantee and which encompass the purposes set forth in this Conservation Restriction. Such entity or governmental unit must qualify 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 Massachusetts General Laws as an eligible donee to receive this Conservation Restriction directly. Any assignment of benefits by Grantee (or successor) must require the transferee to carry out the purposes of this Conservation Restriction. Furthermore, no assignment by the Grantee of this Conservation Restriction shall be effective unless previously approved in writing by the Nantucket Planning Board. Any assignment shall be in accordance with Article 97 of the Amendments to the Massachusetts Constitution if applicable. M. Effective Date. This Conservation Restriction shall be effective when Grantor and 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 at the Nantucket Registry of Deeds. This Conservation Restriction shall be registered in a timely manner. N. Subsequent Transfers. Grantor agrees: (1) to incorporate by reference the terms of this Conservation Restriction into any deed or other legal instrument which divests Grantor of any interest in all or a portion of the Premises, including, without limitation, a leasehold interest, and (2) to make reference to this Conservation Restriction in any executory contract for the transfer of any interest in the Premises. Grantor further agrees to give written notice to Grantee of all transfers of any interest in all or a portion of the Premises and to provide such notice forthwith upon every transfer if such notice has not been given prior to a transfer. Such notice to Grantee shall include the name, address and telephone number of the transferee and his/her legal representative, if any. Failure of Grantor to comply with this Paragraph N shall not impair the validity of this Conservation Restriction or limit its enforceability in any way. O. Estoppel Certificates. Upon request by Grantor, Grantee shall within twenty (20) days execute and deliver to Grantor any document which certifies the status 11 Conservation Restriction Deborah and James McIntosh to Nantucket Land Council, Inc. of Grantor's compliance with any obligation of Grantor contained in this Conservation Restriction and which otherwise evidences the status of this Conservation Restriction, as may be reasonably requested by Grantor, including a so-called estoppel certificate if applicable in form suitable for recording in the Nantucket Registry of Deeds. P. Limitation of Grantor Liability. The Grantor shall not be liable for violations occurring after his or her ownership. Liability for any acts or omissions occurring prior to any transfer and liability for any transfer if in violation of this conservation restriction shall survive the transfer. Any new owner shall cooperate in the restoration of the Premises or removal of violations caused by prior owner(s) and may be held responsible for any continuing violations. Q. Merger. Grantor and Grantee agree that the terms of this conservation restriction shall survive any merger of the fee and conservation restriction interests in the Premises. Grantor and Grantee further agree that, should the Nantucket Land Council, Inc. (or any successor in interest to the Nantucket Land Council, Inc.) come to own all or a portion of the fee interest subject to this Conservation Restriction, (i) Grantor, if retaining a portion of the fee interest, and Grantee shall observe and be bound by the obligations and the restrictions imposed upon the Premises by this Conservation Restriction; (ii) this Conservation Restriction shall not be extinguished through the doctrine of merger in whole or in part in view of the public interest in its enforcement; (iii) Grantee shall be considered to have reserved its right to transfer a Conservation Restriction; and (iv) the Grantee as promptly as practicable prior to the acquisition of the fee shall assign the Grantee's interest in this Conservation Restriction of record to another entity in conformity with the requirements of this Paragraph Q., subject to prior written approval by the Nantucket Planning Board. The instrument of assignment shall refer to the provisions of this subparagraph, and shall contain confirmatory language suitable to reserve a right to re-impose this Conservation Restriction to the extent, if any, necessary to continue it in force. R. Successor Grantee. If Grantee shall cease to exist or to be a qualified organization under Section 170(h) of the Internal Revenue Code of 1986, as amended, or to be authorized to acquire and hold conservation restrictions under M.G.L. Chapter 184, Section 32, as amended, and a prior assignment of this Conservation Restriction has not been made, then Grantee's rights and obligations under this Conservation Restriction shall become vested in and fall upon the first (by order of listing) of the below-named organizations which agrees to acceptance of the assignment and which qualifies for assignment under the terms of this paragraph, and such vesting shall have been previously approved in writing by the Nantucket Planning Board: (a) The Massachusetts Audubon Society, Lincoln, Massachusetts 12 Conservation Restriction Deborah and James McIntosh to Nantucket Land Council, Inc. (b) Nantucket Conservation Foundation, Inc., Nantucket, Massachusetts In the event that none of the above-named organizations agrees to acceptance and qualifies for assignment, Grantee's rights and obligations shall become vested in such other organization, previously approved in writing by the Nantucket Planning Board, as a court of competent jurisdiction shall direct under the doctrine of cy pres. S. Successor Entities. In the event that any organization, political subdivision or other entities identified in this conservation restriction shall cease to exist or have its responsibilities or powers transferred to another body, such successor body shall assume the function and authority of the original identified organization, political subdivision or other entity for the purpose described in this conservation restriction. T. Restriction in Perpetuity. The provisions hereof shall inure to and be binding upon the heirs, executors, devisees, administrators, successors and assigns as the case may be of the parties hereto and shall be restrictions running with the land in perpetuity. U. Amendment. If circumstances arise under which an amendment to or modification of this Conservation Restriction would be appropriate, Grantor and Grantee may jointly amend this Conservation Restriction; provided that no amendment shall be allowed that will affect the qualification of this Conservation Restriction or the status of Grantee under any applicable laws, including Section 170(h) of the Internal Revenue Code of 1986, as amended, or Sections 31-33 of Chapter 184 of the General laws of Massachusetts. Any amendments to this conservation restriction shall occur only in exceptional circumstances. The Grantee will consider amendments only to correct an error or oversight, to clarify an ambiguity, or where there is a net gain in conservation value. All expenses of all parties in considering and/or implementing an amendment shall be borne by the persons or entity seeking the amendment. Any amendment shall be consistent with the purposes of this Conservation Restriction, shall not affect its perpetual duration, shall be approved by the Secretary of Energy and Environmental Affairs and if applicable, shall comply with the provisions of Art. 97 of the Amendments to the Massachusetts Constitution, and any gifts, grants or funding requirements. Any amendment shall be recorded in the Nantucket Registry of Deeds. V. Effective Date. This Conservation Restriction shall be effective when the Grantor and the Grantee have executed it, the administrative Approvals required by Section 32 of Chapter 184 of the General Laws have been obtained, and it has been recorded in the Nantucket Registry of Deeds. The Grantee shall record this instrument in timely manner in the Nantucket Registry of Deeds. 13 Conservation Restriction Deborah and James McIntosh to Nantucket Land Council, Inc. W. Controlling Law. The interpretation and performance of this Conservation Restriction shall be governed by the laws of the Commonwealth of Massachusetts. X. Liberal Construction. Any general rule of construction to the contrary notwithstanding, this Conservation Restriction shall be liberally construed in favor of the grant to affect the purpose of this Conservation Restriction and the policy and purposes of Massachusetts General Laws Chapter 184, Sections 31-33. If any provision in this instrument is found to be ambiguous, any interpretation consistent with the purpose of this Conservation Restriction that would render the provision valid shall be favored over any interpretation that would render it invalid. 14 Conservation Restriction Deborah and James McIntosh to Nantucket Land Council, Inc. The foregoing Conservation Restriction is hereby executed by the undersigned, as a sealed instrument under Massachusetts law. WITNESS my hand and seal this day of 2011. Deborah H. McIntosh WITNESS my hand and seal this day of 2011. James R. McIntosh COMMONWEALTH OF MASSACHUSETTS Nantucket, ss. , 2011. On this ___ day of __________, 2011, before me, the undersigned notary public, personally appeared Deborah H McIntosh and James R. McIntosh, proved to me through satisfactory evidence of identification, which were _______________ , to be the persons whose names are signed on the preceding or attached document, and acknowledged to me that they signed it voluntarily for its stated purpose. ___________________________________ Notary Public (Print Name) My Commission Expires: 15 Conservation Restriction Deborah and James McIntosh to Nantucket Land Council, Inc. ACCEPTANCE OF GIFT BY THE NANTUCKET LAND COUNCIL, INC. The gift of the above Conservation Restriction from, Deborah H. and James R. McIntosh, is hereby accepted this __day of ____, 2011. Nantucket Land Council, Inc. By: ___________________________ _____________________________ Officer’s Name Officer’s Name COMMONWEALTH OF MASSACHUSETTS Nantucket, ss. On this ___ day of __________, 2011, before me, the undersigned notary public, personally appeared _____________________________, 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. ___________________________________ (Print Name) Notary Public My Commission Expires: COMMONWEALTH OF MASSACHUSETTS Nantucket, ss. On this ___ day of __________, 2011, before me, the undersigned notary public, personally appeared ____________________, 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. ___________________________________ (Print Name) Notary Public My Commission Expires: 16 Conservation Restriction Deborah and James McIntosh to Nantucket Land Council, Inc. APPROVAL BY BOARD OF SELECTMEN OF THE TOWN OF NANTUCKET We, the undersigned members of the Board of Selectmen of the Town of Nantucket, Massachusetts, hereby certify that at a meeting held on _________________________, 2011, the Board of Selectmen voted to approve the foregoing Grant of Conservation Restriction by Deborah H. and James R. McIntosh to the Nantucket Land Council, Inc. , pursuant to Massachusetts General Laws, Chapter 184, Section 32, as being in the public interest. Board of Selectmen of the Town of Nantucket _______________________________ ____________________________ __________________________________ _____________________________ __________________________________ COMMONWEALTH OF MASSACHUSETTS NANTUCKET, ss. __________________, 2011 On this _______ day of ________________, 2011, before me, the undersigned notary public, personally appeared ________________________________________________________________ _______________________________________________________________, proved to me through satisfactory evidence of identification, which were _______________________________, to be the person(s) whose name is signed on the preceding document, and acknowledged to me that he/she signed it voluntarily for its stated purpose, as a member of the Board of Selectmen for the Town of Nantucket. ______________________________ Notary Public My Commission Expires: __________ 17 Conservation Restriction Deborah and James McIntosh to Nantucket Land Council, Inc. APPROVAL BY SECRETARY OF ENERGY AND ENVIRONMENTAL AFFAIRS, COMMONWEALTH OF MASSACHUSETTS The undersigned, Secretary of Energy and Environmental Affairs of the Commonwealth of Massachusetts, hereby certifies that the foregoing Grant of Conservation Restriction by Deborah H. and James R. McIntosh, to the Nantucket Land Council, Inc. has been approved in the public interest pursuant to Massachusetts General Laws, Chapter 184, Section 32. Said approval 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. _______________ _______________________________________ Date Secretary of Energy and Environmental Affairs COMMONWEALTH OF MASSACHUSETTS , ss. On this ___ day of _________, 2011, before me, the undersigned notary public, personally appeared ____________________________________, 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. ___________________________________ (Print Name) Notary Public My Commission Expires: 18 Conservation Restriction Deborah and James McIntosh to Nantucket Land Council, Inc. EXHIBIT A Description of Premises Being shown Lots 15 through 34, inclusive in Block 159 of Surfside lands on Plan Book 2 Page 60 filed at the Nantucket Registry of Deeds 19 Conservation Restriction Deborah and James McIntosh to Nantucket Land Council, Inc. Exhibit B Nantucket Registry of Deeds Plan Book 2 Page 60 Being shown Lots 15 through 34, inclusive in Block 159 of Surfside lands Marine & Coastal Resources Department Town of Nantucket D. F. Fronzuto 34 Washington Street Marine Superintendent/CHM Nantucket, MA 02554 508-228-7261 dfronzuto@nantucket-ma.gov 508-325-5388 FAX To: Town Manager From: Marine Superintendent Date: September 1, 2011 RE: Public Hearing; Children’s Beach Boat Ramp Public input, state involvement; The project was initially designed and then redesigned after a lengthy and detailed public hearing. There were numerous updates to the public, administration and sign-offs from the Park and Recreation Commission and the abutters. Permits issued by the CONCOM Massachusetts DEP and the US Army Corps of Engineers. The chronological attached, hopefully explaining that the process has been open, detailed and completely vetted by the public. The State, Public Access Board Director and I met and this project was at one time (2001) considered for partial funding by that board. Due to a limited area designated for parking and funding limitations from the state this project was not able to funded with assistance from the state. Design and funding; Childs Engineering designed this project for the Town of Nantucket. Construction cost was $578K ($127K from WWIF) (four separate Town Meeting Votes approving funding) Placed in Service 2007: The ramp went into service prior to Memorial Day 2007. The ramp has several designed improvements from the previous ramp circa 1971. The designed improvements were reviewed by the Capital Programs Committee at their public hearings and the Finance Committee review process and DEP public hearing in preparation for the four subsequent Town Meeting votes. The ramp has been utilized by the boat yards, mooring companies, commercial and recreational boaters, commercial fishermen, USCG, Mass Environmental Police, State Police and the Marine & Coastal Resources Department since 2007. I estimate the number of operations (boats launched and recovered) at this facility during the last five years to be over 30,000 separate evolutions since May 2007. NANTUCKET HARBOR IS A FEDERAL NO-DISCHARGE ZONE Marine & Coastal Resources Department CHILDREN’S BEACH BOAT RAMP AND BULKHEAD Funding and permitting Chronology:  1993 P & R Annual Town Meeting (ATM) Funding for Bulkhead (75K)  1998 Received completed plot plan from surveyor  1999-2001 Begin design, permitting, ATM funding (7K)  2000 BOS Approve parking for ramp along Easton Street  2001 Marine Dept. Annual Town Meeting Funding (100K) (anticipated State Public Access Board match)(parking)  July 2002 Abutters appeal design  July-Dec re-design project, December appeal satisfied  2003 DEP Approves Dredge portion of project  2003 Dredge portion of project accomplished (Winthrop)  2003 Temporary Repairs made to existing ramp  2003 Marine Dept. Annual Town Meeting Funding (150K)  2004 Chapter 91 License received from the State for redesign  2004 Project to bid, lowest bid received $495,000.00  2005 FY-07 Capital request for additional funding (200K) Project balance (251K)  2006 Project put out to bid, Low bid- $578,426.00 ($127K to come from WWIF)  2006-07 winter construction  2007-08 Bulkhead return and temporary wave-barrier  2010 Permanently installed wave-barrier Prop ID 42.4.2 9 Address 15 HARBOR VIEW WY Owner NANTUCKET TOWN OF C/O PARK & REC 2 BATHING BEACH RD NANTUCKET, MA 2554 Sale Date Sale Price $0 Book/Page 00096/ 329 Lot Size 2.74 acres NOT A LEGAL DOCUMENT Disclaimer The information displayed on this or any other map produced by The Town of Nantucket is for reference purposes only. The Town of Nantucket does not guarantee the accuracy of the data. Users are responsible for determining the suitability for individual needs. All information is from the Town of Nantucket Geographic Information System (GIS) database. For general reference only: Important caveats which must be considered when using this data are available from the Nantucket GIS Coordinator. Town of Nantucket, Massachusetts 9/14/2011 Map Composed Copyright 2005 Town of Nantucket, MA. All rights reserved. Developed by AppGeo Town of Nantucket Web GIS Page 1 of 1Town of Nantucket Web GIS - Printable Map 9/14/2011http://host.appgeo.com/nantucketma/PrintableMap.aspx?Preserve=Width&MapWidth=221... Prop ID 42.4.2 9 Address 15 HARBOR VIEW WY Owner NANTUCKET TOWN OF C/O PARK & REC 2 BATHING BEACH RD NANTUCKET, MA 2554 Sale Date Sale Price $0 Book/Page 00096/ 329 Lot Size 2.74 acres NOT A LEGAL DOCUMENT Disclaimer The information displayed on this or any other map produced by The Town of Nantucket is for reference purposes only. The Town of Nantucket does not guarantee the accuracy of the data. Users are responsible for determining the suitability for individual needs. All information is from the Town of Nantucket Geographic Information System (GIS) database. For general reference only: Important caveats which must be considered when using this data are available from the Nantucket GIS Coordinator. Town of Nantucket, Massachusetts 9/14/2011 Map Composed Copyright 2005 Town of Nantucket, MA. All rights reserved. Developed by AppGeo Town of Nantucket Web GIS Page 1 of 1Town of Nantucket Web GIS - Printable Map 9/14/2011http://host.appgeo.com/nantucketma/PrintableMap.aspx?Preserve=Width&MapWidth=221... ITEMCURRENT FEELAST INCREASETERMPROPOSED NEW FEECommercial Mooring$502002Annually$60Private Mooring 11' - 23'$752002Annually$80Private Mooring 24' - 32'$1502002Annually$160Private Mooring 33' - 49'$2252002Annually$250Repair Mooring$1502002Annually$175Private Mooring 50'+$3002002Annually$350Livery Mooring$1502002Annually$175Rental Mooring/Madaket$2002002Annually$225Rental Mooring/Town$50020083Years$525Transient Dockage$5/hour or $25/day2002N/A$15/hour or $75/dayScallop Boxes$152002$18.00Mooring Waiting List$102008AnnuallyUnchangedShellfish Permit Recreational, Resident$252006 AnnuallyUnchangedShellfish Permit Recreational, Non-resident$1002006AnnuallyUnchangedShellfish Permit Commercial, Scallop$2502004AnnuallyUnchangedShellfish Permit Commercial, other species$1502004AnnuallyUnchangedTown Pier Slip Rental, Recreational$75/foot2005AnnuallyUnchangedTown Pier Slip Rental, Commercial$100/foot2005AnnuallyUnchangedAquaculture Lease$25/acreAnnuallyUnchangedIce$2/bag; $3/block$3/bag; $5/blockNEW FEESCRUISE SHIPS $250/tripExcursion/Charter Pick-up @Town Landings, Insurance$25/day (60 days)Shellfish Permit, Recreational Weekend$50/3daysNantucket Yacht ClubPrivate Mooring Fees as established aboveGreat Harbor Yacht ClubPrivate Mooring Fees as established aboveOld North WharfPrivate Mooring Fees as established aboveMadaket MarinePrivate Mooring Fees as established above Harbor and Shellfish Advisory Board Town of Nantucket Chair: Dr. Peter Boyce To: Board of Selectmen From: Peter Boyce, Chair Harbor and Shellfish Advisory Board Subject: Fee schedule for Harbor Related Activities At our meeting on September 13, 2011, the Board discussed the fee schedule proposed by the Marine and Coastal Resources Department. We voted to recommend that you approve the proposed schedule with the exception of the proposed new “Excursion/Charter pickup” fee. We felt that this fee might have unintended consequences for the “occasional use” charter captain, and we voted to recommend that this new fee be discussed further before adopting it. We understand the goal of imposing a charge for the use of Town facilities, but we feel there is a difference between those commercial businesses who use the facilities on a daily basis and those people who might use the facilities once or twice a week. We applaud the proposed initiation of a Weekend Recreational Shellfish Permit for $50. However, we recommend that this be a permit valid for a whole week. Scalloping is only permitted for five days, from Wednesday through Sunday, and a weeklong license seemed to us to be more attractive than a weekend license. The enforcement issues would be the same in either case. Mosquito Control Advisory Committee (discussed by BOS 8/3/11) Appointed by: Board of Selectmen Membership: 1 member of BOH 1 staff member of the DPW to be designated by the Director 1 member of the ConCom 2 citizens to be appointed by the BOS Term: One year (expiration 9/1/12) Charge: The committee will prepare draft special legislation for the BOS/BOH to review and include on the 2012 ATM warrant by December 31, 2011. The committee will also develop a draft plan to control mosquitoes on Nantucket, including equipment, staffing, professional services, supplies, other necessary components and associated estimated costs for a program to be implemented for FY 2013, using up to $100,000 (approved at the June 14, 2011 special election). The committee will determine if future estimated costs exceed that amount and include this information in its final report. The committee will work to identify mosquito “hot spots” on both public and private property in sufficient time so that the public property can be treated in time for the 2012 season; and, to seek the possibility of treating private property with the permission of the owner(s) if special legislation has not been secured by then. The committee will consider and evaluate various treatment applications and the criteria under which to apply specific applications. Timeline: Advertise 8/18, 8/25, 9/1 Public hearing on applications 9/21 Appointments 9/28 Committee must start meeting immediately so as to provide draft legislation by 12/31/11 Draft plan for a program for FY 13 to be provided by 2/29/12 Draft plan for a program for FY 14+ to be provided by 6/30/12 Commission on Disability (appt. by Town Manager) Nancy Rezendes 2012 Whitey Willauer 2012 VACANT 2013 Ellen Braginton-Smith 2013 Georgia Ann Snell 2014 Jeanette Topham 2014 Milton Rowland Chairman 2014