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
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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
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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
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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.
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Entered into this ____ day of October, 2013.
Town of Nantucket Siasconset Beach Preservation Fund, Inc.
By its Board of Selectmen By its President
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483036/19726/0001