HomeMy WebLinkAbout20131120-Cohen email re edits to TON-SBPF draft license_201404070854227314From:Steven Cohen
To:Erika Mooney
Subject:Edits to the draft license
Date:Wednesday, November 20, 2013 12:50:00 PM
Attachments:LicenseWithAbuttersAndTON.doc
This version is slightly updated from what I sent George last night, so please use this.
Steven
Steven L. Cohen, Attorney
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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DRAFT – FOR DISCUSSION ONLY
LICENSE AGREEMENT
THIS AGREEMENT is entered into this ____ day of ________________, 2013, by and between the Town of Nantucket, a body politic and corporate and a political subdivision of the Commonwealth of Massachusetts, acting by and through its Board of Selectmen,
having an address of Town & County Building, 16 Broad Street, Nantucket,
Massachusetts 02554, being the owner of Assessor’s Parcel 48-8 (the “LicensorTown”)
and Siasconset Beach Preservation Fund, Inc. (“SBPF”), a Massachusetts 501(c)(3) corporation created by residents of Nantucket to protect homes and associated public infrastructure along Baxter Road in the Siasconset area of Nantucket, and the owners of
private properties located at 85, 87, 91, 93, 97, 99, 101, 105, 107, and 107A Baxter Road
(“LicenseesOwners”). SBPF represents and expressly warrants that it is a corporate
entity with the legal authority to contract under state and federal law, and that the undersigned has express authority to sign this license as a binding contract on its behalf. SBPF shall also provide the LicensorTown with such corporate documents as are
necessary to confirm these representations and warranty.
WHEREAS, LICENSORTOWN and the Owners is are the owner of record of certain sections of land (the “Licensed Premises”) depicted on plans prepared by Milone &
MacBroom, dated October 25, 2013 which have been submitted to the Nantucket
Conservation Commission (the “Commission”) in support of the Notice of Intent
described below, copies of which plans are attached hereto as Exhibits A and B;
WHEREAS, the LicensorTown and SBPF have entered into a Memorandum of
Understanding and Amendment to the Memorandum of Understanding agreeing that the
Town and SBPF shall apply, as co-applicants, for approval of an emergency project (the
“Project”) to protect Baxter Road temporarily in the areas where Baxter Road appears to
be in imminent danger due to erosion of Siasconset Bluff, specifically from 85 to107A Baxter Road; and
WHEREAS, the LicensorTown and SBPF, with the assent of the Licensees Owners have
filed a Notice of Intent with the Commission for approval of the Project, which, if
approved, would involve the entry upon and use of the property of the Town and the Owners for Licensed Premises for construction of a coastal engineering structure upon
the Licensed Premises, including the associated supplemental erosion protection, and
associated inspections, repairs and mitigation activities, as described in the project
narrative submitted in support of the Notice of Intent.
NOW, THEREFORE, in consideration of the mutual promises and covenants herein
made, the parties hereto agree as follows:
1. LicensorThe Town and the Owners hereby grants to the LicenseesSBPF a
license to enter their properties and to use the Licensed Premises to construct a coastal engineering structure to the extent such structure is permitted by the
Commission, including the associated supplemental erosion protection, and
DRAFT – FOR DISCUSSION ONLY
2
associated inspection, repairs and mitigation activities and expressly subject to
any and all conditions which the Commission shall impose upon such permit,
and subject also to any and all other federal, state, or local laws, bylaws,
regulations or code provisions which may apply to the project. Such entry and use shall be exercised from the date of the execution of this License, with no
work altering the properties to commence until and the date upon which any
permit from the Commission shall become effective, whichever occurs later,
and shall continue until such date as it is terminated or the entry and use is no
longer permitted in accordance with the conditions imposed upon the project by the Commission. SBPF shall exercise its rights under this License in a manner so as not to unreasonably interfere with the use of the balance of the
private and public properties by the Owners and the Town. LicensorThe
Town and the Owners makes no representation or warranty, by said grant of
license hereby or otherwise, that the LicensorTown or Owner hasve title to or rights in the Licensed Premises or that the Licensed Premises may be used for
any purpose other than that expressly permitted and conditioned by the
Commission. Licensees SBPF acknowledges that they have it has not relied
upon any warranties or representations of the LicensorTown or Owners nor
any person acting on behalf of the LicensorTown or Owners, and that Licensees SBPF agrees to accept the Licensed Premises “as is”, with no
liability on the part of the LicensorTown or Owners for any condition or
defect or title in the Licensed Premises, whether or not known to the
LicensorTown or Owners or any representative of the LicensorTown or
Owners. The terms of this paragraph shall survive the termination of this License.
2. The LicenseesSBPF shall own any coastal engineering structure and
associated erosion control measures which may be permitted by the
Commission and installed on the Licensed Premises. SBPFThe Licensees shall be solely responsible for the design and construction of the structure and
the means, methods and techniques used for building the structure in
accordance with the conditions imposed by the Commission and shall also
bear all costs of design and construction. The LicenseesSBPF shall also be
solely responsible for all costs necessary for maintenance and repair of the structure in accordance with any and all conditions of approval from the
Commission, including the costs of any required mitigation, such as sand
replenishment. The Licensees shall also be solely responsible for the costs of
removal of the structure upon either expiration of any deadline set forth in the
Commission’s Order of Conditions or prior thereto if removal is validly ordered by the Commission, or by the Board of Selectmen in connection with
any revocation of this License and shall also be solely responsible for the cost
of restoration of the Licensed Premises to pre-project conditions that restore
the form and function of the disturbed bank and beach to the fullest extent
reasonably possible. The Licensees SBPFshall provide the LicensorTown with a letter of credit or surety funds in an amount and form satisfactory to the
LicensorTown in order to secure the faithful performance of any of the
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3
foregoing obligations should the Licensees fail to fulfill their obligations
under this license agreement. Said satisfactory amount and form shall include
an escrow, completion bond or similar surety for any portion of the project
installation to actual construction and also for the full removal costs of entire installation in place plus a 20% overage.
3. Licensees SBPF agrees to indemnify, defend with counsel of the
LicensorTown’s choosing, and hold LicensorTown harmless from and against
all claims, demands, losses, costs, damages, causes of action, or liabilities whatsoever, including but not limited to mechanic’s liens and reasonable attorney’s fees and expenses, which may be imposed upon, incurred by, or
asserted against the LicensorTown, or its respective agents, employees,
successors and assigns by reason of (a) the Licensees’ construction,
maintenance, mitigation, or removal of, any coastal engineering structure permitted by the Commission and any failure on the part of the
LicenseesSBPF, their agents, contractors, or representatives to comply with
any condition required to be performed or complied with by Licensees SBPF
by the Commission; (b) for death, bodily injury or property damage suffered
by any person on account of or based upon the act, omission, fault, negligence or misconduct of any person whomsoever, other than the LicensorTown or
Owners, relating in any way, to SBPF’s the Licensees’ exercise of their rights
under this License; (c) any claims seeking damages for alleged adverse effects
arising from the construction of the coastal engineering structure including but
not limited to alleged adverse effects to downdrift properties, claims for takings, property damage, loss of use, negligence, nuisance, trespass, or diminution of property value; (d) the discharge, release or threatened release
at or from the Licensed Premises of oil or hazardous material as defined under
federal, state or local law which is caused by LicenseesSBPF, their agents,
contractors, or representatives under this License.
4. Licensees SBPF will be solely responsible for any hazards created through
Licensees’ SBPF’s acts or omissions in connection with this License.
Furthermore, Licensees SBPF and the Owners hereby release the
LicensorTown from any and all claims and liabilities of every kind, nature and description whatsoever, whether known or unknown, in both law and equity,
which they have or may have had from the beginning of the world to the date
of execution of this License, as they relate to the Licensed Premises.
Licensees The Owners and SBPF also release the LicensorTown and the
Town from any responsibility or liability for Licensees’ the Owner’s or SBPF’s losses or damages related to the condition of the Licensed Premises,
and Licensees the Owners and SBPF agree and covenant that they will not
assert or bring, nor cause any third-party to assert or bring any claim, demand,
lawsuit or cause of action against the LicensorTown related to the Licensed
Premises, including without limitation, claims for takings, property damage, loss of use, negligence, nuisance, wrongful death, trespass, diminution in
property value, personal injury damages and any other damages relating to or
DRAFT – FOR DISCUSSION ONLY
4
arising from the Licensees’ SBPF’s use of the Licensed Premises. The
provisions of this Paragraph shall survive the termination of this License.
5. Licensees SBPF also agrees to provide all funding for engineering and design services for the layout of a new public road to be known as Baxter Road
Extension, as well as funding for surveys, preparation of easement taking
plans and appraisals, and to defend with the Licensor with counsel of
Licensor’s choosing and indemnify the Licensor against any claims
challenging the amount of compensation awarded for any takings needed for the new public roadway.
6. This License shall not be construed as creating or vesting in the
LicenseesSBPF any estate in the Licensed Premises, but only the limited right
of entry and use as hereinabove stated. The Town and the Owners shall have no obligation to provide for SBPF any services, maintenance, utility service or
other services whatsoever in connection with the Licensed Premises, but shall
provide authorization for SBPF to seek and install such, as needed. SBPF
shall not pay any license fee for its use of the Licensed Premises. The Town
and the Owners shall pay all taxes, fees and any other assessments related to their portions of the Licensed Areas when due and payable (including, without
limitation, real estate taxes).
7. This License is personal and exclusive to SBPFthe Licensees and is not
intended to run with the land. This License may not be transferred or assigned by SBPF without the express written consent of the LicensorTown and the
Owners, or their successors in interest in the Licensed Premises. However,
the terms, provisions, agreements and conditions of this License shall be
binding upon and inure to the benefit of the successors in interest and assigns
of the parties hereto, except that no assignment or transfer in violation of the provisions of this License shall vest any rights in the assignee or transferee,
and no such assignment shall be or be deemed to be of any force or effect.
Neither party shall have the authority to record this instrument without the
express written consent of the other party.
8. This License represents the complete understanding and entire agreement
between the parties hereto with respect to the entry and use of the Licensed
Premises. The terms of the aforesaid Memorandum of Understanding and
Amendment to the Memorandum of Understanding shall remain in full force
and effect to the extent they are consistent with this License. To the extent such terms are inconsistent, the terms of the License shall govern and any
inconsistent terms shall be superseded and of no effect.
9. This License is to be interpreted under and construed in accordance with the
laws of the Commonwealth of Massachusetts. Failureon the part of the Town of Owners to complain of any action or non-action on the part of SBPF, no
matter how long the same may continue, shall not be a waiver by such of any
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5
of its rights hereunder. Further, no waiver by Town or Owners at any time of
any of the provisions hereof shall be construed as a waiver of any of the other
provisions hereof, and a waiver at any time of any of the provisions hereof
shall not be construed as a waiver at any subsequent time of the same provisions. The consent or approval by Town and Owners to or of any action
by SBPF shall not waive or render unnecessary their consent or approval to or
of any subsequent similar act by SBPF.
10. The Licensees SBPF shall procure all necessary permits before undertaking any work on the Licensed Premises. The siting of the coastal engineering
structure and associates activities shall be performed in accordance with the
conditions set by the Commission. The LicenseeSBPF shall not permit any
mechanics’ liens or similar liens, to remain upon the Licensed Premises for
labor and material furnished to the LicenseeSBPF or claimed to have been furnished to the LicenseeSBPF in connection with any work performed or
claimed to have been performed at the direction of the LicenseeSBPF and the
LicenseeSBPF shall cause any such lien to be released forthwith at no cost to
the LicensorTown.
11. If, in consultation with the Commission and the Director of Public Works, the
LicensorTown determines that this License should be revoked, this License
shall be revocable by the LicensorTown at its sole discretion upon written
notice of revocation at least sixty (60) days prior to the termination date stated
within said notice. This License shall also be revocable by SBPF or the Owners upon written notice of said revocation at least sixty (60) days prior to
the termination date stated within said notice. In the event that this License is
terminated, then the Licensee SBPF at its own expense shall remove the
structure from the Licensed Premises and restore the Licensed Premises to
conditions that restore the form and function of the disturbed bank and beach to the fullest extent reasonably possibleits original condition at the
commencement of this License, as nearly as possible. This obligation shall
survive the termination of this License.
12. The Licensees SBPF shall maintain during the term of this License public liability insurance, including coverage for bodily injury, wrongful death and
property damage, and coverage for any of the claims referenced in paragraphs
3 and 4 above, in the following minimum amounts: General Liability
$10,000,000 per occurrence; Bodily Injury Liability $10,000,000 per
occurrence; and Property Damage Liability or a combined single limit of $10,000,000 annual aggregate limit. Prior to entering upon the Licensed
Premises, and thereafter on or before January 1 of each year of the term of this
License, Licensee SBPF shall provide the LicensorTown and the Owners with
a certificate of insurance in each case indicating the LicensorTown and
Owners as an additional insured on the policy and showing compliance with the foregoing provisions. Licensee SBPF shall require the insurer to give at
least thirty (30) days written notice of termination, reduction or cancelation of
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6
the policy to LicensorTown. Licensee SBPF or Licenseeit’s contractors shall
maintain workmen’s compensation insurance during any site work,
maintenance or repair on the Licensed Premises, as required by law. Licensee
SBPF agrees that while any contractor is performing work on behalf of the SBPF Licensee at the Licensed Premises the contractor shall carry liability
insurance and automobile liability insurance in amounts of General Liability
and Automobile Liability insurance in amounts of $3,000,000.00, combined
single limit and shall name the LicensorTown as an additional insured party.
Prior to any construction or site work on the Licensed Premises performed by SBPF the Licensee or any contractor on behalf of SBPF the Licensee on the
Licensed Premises, SBPF Licensee shall provide LicensorTown with a copy
of the contractor’s insurance certificate indicating liability insurance coverage
as herein specified, and copies of any approval, permits, necessary or obtained
to construct or siting of the dwelling and any construction or excavation work.
[REMAINDER OF PAGE LEFT INTENTIONALLY BLANK]
DRAFT – FOR DISCUSSION ONLY
EXECUTED as an instrument under seal as of the date first above written.
LICENSORTOWN: LICENSEESSBPF:
TOWN OF NANTUCKET Siasconset Beach Preservation Fund, Inc.
By its Board of Selectmen
__________________________________ By:___________________________
__________________________________ OWNERS:
85 Baxter Road
__________________________________ By:
87 Baxter Road __________________________________ By:
91 Baxter Road
__________________________________ By:
93 Baxter Road
__________________________________ By:
97 Baxter Road
By:
99 Baxter Road
By:
101 Baxter Road
By:
105 Baxter Road
By:
107 Baxter Road
By
107A Baxter Road
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8
By:
486559/19726/0001