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HomeMy WebLinkAbout20131002-Cohen email re MOU amendment edits_201404071112288185From:Steven Cohen To:George Pucci Cc:Josh Posner; Helmut Weymar; Kermit Roosevelt; Arthur Reade; Kara Buzanoski; Jeff Carlson; Libby Gibson; Erika Mooney Subject:MOU edits Date:Wednesday, October 02, 2013 3:36:33 PM Attachments:MOU-TON-SBPF-BaxterRd-Amendment-BOSversion.doc George, I have reviewed the document with my client. SBPF is ok with most of the substantive changes to the 7/5 MOU that are in the draft document, but we have a few proposed edits, as attached. I plan to request these tonight. Please let me know if you have any questions or concerns about them. Steven Steven L. Cohen Reade, Gullicksen, Hanley, Gifford & Cohen, LLP P.O. Box 2669 (6 Youngs Way) Nantucket, MA 02584 508-228-3128 W 508-228-5630 F SLC@readelaw.com STATEMENT OF CONFIDENTIALITY: The information contained in this electronic message and any attachments to this message are intended for the exclusive use of the addressee(s) and may contain confidential or privileged information. If you are not the intended recipient, or the person responsible for delivering the e-mail to the intended recipient, be advised you have received this message in error and that any use, dissemination, forwarding, printing, or copying is strictly prohibited. Please notify the sender immediately at either (508) 228-3128 or SLC@readelaw.com, and destroy all copies of this message and any attachments. Amendment to the Memorandum of Understanding Between The Town of Nantucket and Siasconset Beach Preservation Fund, Inc. for the Design, Permitting and Construction of a Coastal Erosion Structure and for the Protection and/or Relocation of Baxter Road This shall serve as an amendment (“Amendment”) to the Memorandum of Understanding (“MOU”) entered into on July 5, 2013, by and between the Board of Selectmen of the Town of Nantucket (the “Town”) and Siasconset Beach Preservation Fund, Inc. (“SBPF”), a Massachusetts 501(c)(3) corporation created by residents of Nantucket to protect historic homes and associated public infrastructure along Baxter Road in the Siasconset area of Nantucket; hereunto duly authorized. Any and all terms and conditions of this Amendment which are inconsistent with the terms and conditions contained in the MOU are expressly intended to supersede such terms and conditions so that they shall no longer apply. All other terms and conditions shall remain in full force and effect. WHEREAS, certain of the facts and assumptions underlying the terms and conditions set forth in the original MOU have changed and/or no longer apply, the parties recognize and wish to enter into this Amendment so as to bring their agreement up to date. Such changed facts and underlying assumptions include but are not limited to the reduction in size of the project originally proposed in SBPF’s Notice of Intent (“NOI”) to the Town’s Conservation Commission, the change in the project schedule so that SBPF no longer intends to seek approval for a three-phase project as described in numbered paragraphs 1-9 of the MOU, as well as other project changes in the scope and timing of the erosion protection project and related actions, as well as changes which may result in a change to the funding mechanism referred to in numbered paragraph 7 of the MOU; WHEREAS, during the public hearings on SBPF’s underlying NOI and the findings of the Town’s engineering consultant, the Town has identified two potential failures involving Siasconset Bluff in the area of Baxter Road, including 1) global failure which would be a catastrophic bank failure caused by undermining at the toe of the bluff by wave action; and 2) local failure which would result along smaller sections of the bluff and is more likely to be caused by runoff discharging from the top of the bank and running down the exposed face of the bluff, so that there is an immediate need for emergency measures to stabilize protect Baxter Road and the associated utilities temporarily, in order to maintain vehicular access and utility service to the residential properties on Baxter Road north to the Sankaty Head Lighthouse; WHEREAS, the Town’s engineering consultant has also determined that there is an immediate need for an emergency response action plan outlining how the Town will 2 provide emergency vehicular access, water supply and sanitary sewer service to the residences at the north end of Baxter Road in the event of a failure of the roadway and that there is also a need for long-term planning for the potential eventual loss of Baxter Road regardless of whether temporary and/or permanent stabilization protection measures for Siasconset Bluff are ultimately approved by the Town’s Conservation Commission and the Massachusetts Department of Environmental Protection; NOW THEREFORE, the Parties agree to the following amended course of action to that agreed to in the original MOU: 1. SBPF and the Town shall apply, as co-applicants, for approval of an emergency project to stabilize protect Baxter Road temporarily in the areas where Baxter Road appears to be in imminent danger of collapse due to erosion of Siasconset Bluff, specifically from 85 -91 Baxter Road and from 99- to 107A Baxter Road. SBPF shall pay for all engineering and construction costs related to such project, maintenance and repair of any approved installation, and mitigation and/or removal of any approved temporary protection installation in the event of failure of, or damage caused by such installation and shall also indemnify the Town against liability arising from damage caused by such installation, excepting the installation, maintenance, removal, or mitigation itself from the definition of damage. 2. SBPF shall provide funding for professional services for the Town, including legal, engineering, and survey services, to formulate an emergency action plan outlining how the Town will provide emergency vehicular access, water supply, and sanitary sewer service, to the residences at the north end of Baxter Road, and shall ensure that utilities are notified and requested to provide an emergency response action plan for the relocation of electric, telephone and cable utility service to the area. 3. SBPF shall assist the Town with respect to long-term planning for the possible eventual loss of Baxter Road, regardless of whether a permanent coastal engineering structure is ultimately approved by the Conservation Commission, and SBPF agrees to assist the Town in preparing for “springing easements” triggered by the Town and/or County if there is a failure of Baxter Road, the criteria for which shall be established as soon as possible with the intent that the Town and/or County can act promptly in the event of such failure, to construct alternative access. SBPF shall provide the necessary funding for engineering and design services for construction of one or morean alternative roadways, as well as funding necessary for surveys, preparation of easement taking plans, and appraisals for the relocation of Baxter Road. SBPF shall also endeavor to obtain easements or access agreements from private property owners so that takings can be avoided or minimized to the fullest possible extent. 4. The Town certifies that an emergency danger exists to the homes and public infrastructure between from 85 to 107A Baxter Road and agrees to assist in expediting the public hearing and related processes on the emergency project so that the Conservation Commission’s hearing on the emergency project opens on or before 3 October 16, 2013, with the intent that emergency measures can proceed and be installed as soon as possible, and prior to the Winter, 2013/14 storm season. To the extent Town land is required for this emergency project, including access thereto, the Town by its Board of Selectmen hereby consents to such use. 5. The obligations in Sections 3 and 4 herein shall be part of Phases 2 and 3 of the July 5, 2013 MOU and shall be contingent upon the permitting and installation of the emergency protection detailed in Sections 1 and 4. 4 Entered into this ____ day of October, 2013. Town of Nantucket Siasconset Beach Preservation Fund, Inc. By its Board of Selectmen By its President ____________________________ ___________________________ ____________________________ ____________________________ ____________________________ ____________________________ 483036/19726/0001