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HomeMy WebLinkAboutBaxter_Road_Alt_Access_MOU_FullyExecutedMEMORANDUM OF UNDERSTANDING FOR ALTERNATIVE ACCESS TO NORTH END OF BAXTER ROAD This MEMORANDUM OF UNDERSTANDING (“MOU”) is dated this ___ day of ___________, 2015 between Patrick Ryan, as Trustee of the Ryan Nantucket Realty Trust under a Declaration of Trust dated February 6, 2008, filed with Nantucket Registry District of the Land Court as Document No. 123092 (“Ryan”), Ann Furrow (“Furrow”), the Sankaty Head Golf Club, Inc., a Massachusetts corporation (“Sankaty”), the Sconset Trust, Inc., a Massachusetts corporation (the “Trust”), Siasconset Beach Preservation Fund, Inc. (“SBPF”), and the Town of Nantucket, a Massachusetts municipal corporation acting by and through its Board of Selectmen (the “Town”). WHEREAS, Ryan, Furrow, Sankaty and the Trust, propose to provide limited access as described herein (in the event Baxter Road becomes impassable as a result of advancing coastal erosion) to themselves and to those owners of certain private property located on Baxter Road, all as more specifically identified in Exhibit A, attached hereto (the “Baxter Neighbors”), situated between the property of 86 Baxter Road Nominee Trust at 86 Baxter Road (“the 86 Baxter Land”) and Jay W. Wertheimer, Trustee of Eight-Five Baxter Road Nominee Trust of 85 Baxter Road (the “Wertheimer Land”), north to the Trust property at 122 Baxter Road (the “Lighthouse Property”); and WHEREAS, the Town proposes to be responsible for the initial construction of the alternate access as described below upon the terms set forth herein. NOW THEREFORE, in consideration of the foregoing and in consideration of other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows: 1. Ryan and Furrow Easement - Ryan and Furrow shall grant a ten foot (10’) wide gravel access within a twenty foot (20’) wide easement between the Ryan property at 110 Baxter Road and the Furrow property at 112 Baxter Road (the “Ryan/Furrow Access”) to Baxter Road over their respective land shown on a plan attached hereto as Exhibit B. 2. Sankaty Easements - Sankaty shall grant over its land at 125 Sankaty Road: (a) a twenty foot (20’) wide asphalt access within a forty foot (40’) wide easement, with possible temporary construction easements shown on a plan attached hereto as Exhibit B;(the “Sankaty Access”); and (b) a ten foot (10’) wide gravel easement on the Sankaty land running north from the Sankaty Access to the property of Richard S. Mackay, as Trustee of Richard S. Mackay 2002 Revocable Trust, and Linda M. A. Mackay, as Trustee of Linda M. A. Mackay 2002 Revocable Trust at 120 Baxter Road (“Mackay”), transitioning to a four foot (4’) gravel pedestrian path to the Lighthouse Property (the “Lighthouse Access”), for: (i) Access to the Furrow and Mackay properties and those of Stephen B. Cohen at 116 Baxter Road (“Cohen”), and Rick Hinchey, as Trustee of 114 Baxter Road Nominee Trust, at 114 Baxter Road (“Hinchey”); and (ii) Pedestrian and bicycle access to the Lighthouse Property. 1 (c) Limited access easement to the Trust over existing driveways on its properties to the Lighthouse Property for emergency and routine maintenance purposes. (d) An easement for a parking area for six (6) vehicles for use by members of the public who are visiting the Lighthouse Property (the “Sankaty Parking”). (e) An easement for a small turn-around at the point where the Alternative Access transitions from twenty feet (20’) wide to ten feet (10’). Appropriate signage and 4”x4” timber posts shall be placed at such juncture to discourage parking and travel beyond that point. The proposed Sankaty Access, Ryan/Furrow Access, Lighthouse Access, and Sankaty Parking are more particularly shown on the plan attached hereto as Exhibit B and are collectively referred to herein as the “Alternative Access.” 3. Easements to Town - In consideration of the payments made by the Town pursuant to this MOU, Sankaty, Ryan, and Furrow shall grant appropriate easements for the Alternative Access to the Town for its emergency or other official vehicles, the Wannacomet Water Company, and other public utilities for the installation, repair, maintenance, and replacement of underground utility services, as well as a temporary construction easement to construct the Alternative Access. In addition Sankaty shall grant to the Town an easement for public way purposes along the Sankaty Access which easement shall include a turnaround for the transition point. In consideration of the voluntary easement in the Ryan/Furrow Access granted to the Town and in lieu of damages, the Town shall, subject to appropriation, pay appropriate damages of Two Hundred Fifty Thousand Dollars ($250,000.00) to Ryan and Furrow each (for a total of $500,000.00). The payment to Ryan and Furrow shall not be paid by the Town until such time as Baxter Road has been determined to be unsafe for vehicular passage as set forth in Paragraph 4 below, the appropriation by Town Meeting has been approved and all easements referenced in this MOU have been granted by all parties. All of such signed easements shall be held in escrow and not recorded or otherwise acted upon until such time as such payment has been made in full, and the appropriation for the construction set forth in Paragraph 4 below has been irrevocably and unconditionally made and approved. Simultaneously with the execution of this MOU all of the Baxter Neighbors as set forth on Exhibit A who own property on the east side of Baxter Road shall execute a One Big Beach Easement to the Town over their respective properties in a form substantially similar to that which is attached hereto as Exhibit C. It shall be SBPF’s, and not Ryan or Furrow’s, obligation to secure the easements from the applicable property owners. 4. Conditions and Control of Alternative Access - Access over the Alternative Access is intended as an avenue of last resort, to be used only when all reasonable efforts to save Baxter Road in accordance with applicable regulatory requirements have failed. To that end, the Alternative Access will be made available when, in the opinion of a majority of three (3) licensed Massachusetts civil engineers, one designated by the Town, one designated by the other parties hereto, and one designated by such two designated engineers Baxter Road is no longer safe for passage due to coastal erosion. Such condition shall not be construed to preclude the Town’s ability to exercise municipal authority over any public safety emergency. The Town shall reserve an easement over Baxter Road for pedestrian access. Such access shall be permitted if Baxter Road is deemed safe for pedestrian traffic by the Town Manager in consultation with the Department of Public Works Director, the Police Chief, and the Fire Chief. Except for the Sankaty Access, the Alternative Access shall remain private. The Town shall, subject to appropriation, be responsible for the initial construction of the Alternative Access (the “Project”), and thereafter the owners association referred to below shall be responsible for 2 routine maintenance and upkeep of the Alternative Access except for the Sankaty Access which shall be the responsibility of the Town when it is accepted as a public way. Subject to the conditions and limitations set forth herein and as necessary for emergency personnel (police, fire, EMT’S, ambulances, and other medical personnel), the Lighthouse Access shall be used solely for (a) vehicular and pedestrian access by Furrow, Mackay, Cohen, and Hinchey as appurtenant to their properties, and (b) pedestrian access, only, by the public and by the Trust, as appurtenant to the Lighthouse Property, and the Ryan/Furrow Access shall be used solely for vehicular and pedestrian access by Ryan, Furrow, and the Baxter Neighbors, and, under certain limited conditions set forth below, or for vehicular access only by the Trust; provided further, however, that with respect to the Baxter Neighbors, those Baxter Neighbors owning only vacant land as set forth in Exhibit A shall be entitled to use the Ryan/Furrow Access solely for the limited purpose of management and protection of such vacant land and for no other purpose, including, but not limited to, construction (other than such construction as is related to protection of such vacant land), public access, or occupancy. Included in such right of access are the guests and invitees of those having the right of access. Access over the Ryan/Furrow Access shall be controlled by appropriate signage at the westerly ends of both the Sankaty Access and the Ryan/Furrow Access; provided, however, that if the public routinely trespasses over the Ryan Furrow Access, other methods of limiting access, such as an unlocked gate, may be implemented. The Trust’s use of the Ryan/Furrow Access shall be limited as follows: (a) The Ryan/Furrow Access will be fully open to members of the public visiting the Lighthouse Property only on Father's Day Sunday and the Saturday of Columbus Day weekend. There shall be no access to members of the public visiting the Lighthouse Property over the Ryan/Furrow Access on any other days. (b) No buses will be allowed to use the Ryan/Furrow Access. Tour vans having a maximum capacity of sixteen passengers (including the driver) may use the Ryan/Furrow Access only on the two open days noted above. (c) The Trust may use the Ryan/Furrow Access when the Trust deems necessary in its sole discretion, including for emergency vehicles and personnel, but in no event for public access except as expressly herein provided. 5. Association - As a prerequisite to using the Alternative Access, those having the right of access shall enter into and become part of an owners association (the “Association”). The Association shall set reasonable rules and regulations for the use of the Alternative Access, including, but not limited to, coordinating services, such as utilities, landscaping, and deliveries, so as to minimize the number of vehicle trips on the Ryan/Furrow Access and shall assess and collect fees and charges for the routine maintenance and upkeep of the Alternative Access and appropriate insurance thereon. The members of the Association shall indemnify and hold Ryan, Furrow, and Sankaty harmless against any and all loss or damage arising from their use of the Alternative Access, and Ryan, Furrow, and Sankaty shall have no obligation to pay any Association fees and charges. The Town and/or County shall, subject to all statutory requirements, take whatever steps are necessary to abandon that portion of Baxter Road from the breach but no further south than the 86 Baxter Land and the Wertheimer Land, north to its northern terminus at the Lighthouse Property and shall convey such abandoned roadway to the Association, subject to a pedestrian easement for the public. In the event that the Alternative Access is not constructed for any reason or additional measures are required to provide access to any residents of Baxter Road, nothing herein shall be construed as imposing a limitation on the statutory authority of the Town to lay out and construct additional roadways, including the authority of the Town to acquire rights in such roadways 3 pursuant to eminent domain. The Town agrees that if the Alternative Access is constructed in accordance with the provisions of this Agreement, the Town or County of Nantucket shall not exercise the power of eminent domain with respect to the Ryan Furrow Access. 6. Betterment Assessments – Ryan and Furrow understand that the Town intends to assess a betterment upon all applicable lots benefiting from the Alternative Access, depending upon the location of any breach in Baxter Road or the location of the failure or closure of the roadway to vehicular traffic, and that such betterment shall be for the total cost of the Project, including the $500,000 damage payment referenced in paragraph 3, and all other costs as appropriate under G.L. c. 80, but that the Furrow property and the Ryan property shall be excluded from such betterment. 7. Access Agreement - The Access Agreement, the delivery of which shall be facilitated by the best efforts of SBPF prior to construction of the Alternative Access, shall be in recordable form, which shall be recorded with the Nantucket County Registry of Deeds and the Nantucket Registry District of the Land Court by the owners of the properties assessed pursuant to Paragraph 6 herein, and shall provide that each lot owner assessed under Paragraph 6 herein shall agree to pay the betterment assessments as described above and not to contest with the Town the validity of the betterment to be assessed upon each of the Baxter Road Properties for the Project; not to contest the validity of any re-assessment of the betterments for the balance(s) due of the betterments for any Baxter Road Property whose home is no longer habitable due to erosion to be shared equally among the remaining Baxter Neighbors; and not to seek an abatement of the assessment, which amount shall be acknowledged to be proportionate to the benefit or advantage that such lots will obtain from the Project. The Town shall apportion the betterment assessments for each of the Baxter Road Properties in equal portions to be repaid for a period not to exceed the maximum term allowable. The Town’s obligations under this MOU are expressly conditioned upon delivery of the fully executed Access Agreement prior to commencement of any activities related to construction of the Alternative Access or payment of the damages specified in paragraph 3. The Access Agreement shall run with the Baxter Road Properties and be enforceable by the Town for a period of thirty (30) years from the date hereof, or until such time as the assessment upon each of the Baxter Road Properties is paid in full without protest, whichever is earlier. The Access Agreement shall also provide that until two years after the recording of an order of taking of the above-referenced easements, or six months after the assessment of the above-referenced betterments, whichever occurs later, the Baxter Neighbors shall not convey all or any part of their respective properties nor convey a mortgage upon the their respective properties, without providing the grantee or mortgagee with a true and complete copy of this MOU and the Access Agreement as signed by the Baxter Neighbor, and said Baxter Neighbor shall indemnify, defend and hold harmless the Town for any sum of money the Town may be obliged to pay a new owner or mortgagee as an abatement, damages or otherwise relating to said assessment or taking, if said Baxter Neighbor does not provide such copy to a new owner or mortgagee. 8. Additional Access - The parties hereto acknowledge that this MOU may only provide short-term access for a limited few homeowners. All parties remain very concerned and stand ready to work with the Town and the County to find a long-term solution for Baxter Road residents. Ryan is prepared to share engineering and other studies involving, the bluff erosion, the installation of water, sewer, and other utilities, the provision of access for police and fire services, and the overall costs. 9. Term of MOU. The term of the MOU shall be the same term as any permit for the bluff protection system referenced in paragraph 4. At the end of the term of the MOU this MOU shall be deemed null and void and the MOU terminated. 4 10. Waiver of Liability. The Town’s entering into this MOU is not evidence of any admission of liability on the part of the Town in its actions or inactions with respect to the actual or potential erosion of Baxter Road and surrounding properties (“Erosion Related Claims”), and the Baxter Neighbors waive any rights to sue the Town for Erosion Related Claims which may have accrued or arisen prior to execution of this MOU. IN WITNESS WHEREOF, the parties have hereto set their hands and seals as of the day referenced above. SIGNATURES TO FOLLOW cc: Sarah F. Alger Sarah F. Alger PC 2 S Water St. Nantucket, MA 02554 Kevin F. Dale, Attorney Vaughan, Dale, Hunter & Beaudette, P.C. 6 Whaler’s Lane Post Office Box 2669 Nantucket, Massachusetts 02554 Steven L. Cohen, Attorney Cohen and Cohen Law, PC 34 Main Street, Second Floor Post Office Box 786 Nantucket, Massachusetts 02554 Arthur I. Reade, Jr., Attorney Reade, Gullicksen, Hanley & Gifford, LLP Post Office Box 2669 Nantucket, Massachusetts 02584 Andrew V. Vorce, Director of Planning Planning and Land Use Services Two Fairgrounds Road Nantucket, Massachusetts 02554 5 ‘SCONSET TRUST, INC. By: ___________________________ Mark W. Filipski, President Notwithstanding execution hereof by the ‘Sconset Trust as a party, agreement of the ‘Sconset Trust is also subject to satisfactory resolution of the betterment assessments and other related provisions herein relating to the ‘Sconset Trust and the Baxter Neighbors, all as yet to be agreed. ___________________________ Patrick Ryan, as Trustee Ryan Nantucket Realty Trust ___________________________ Ann Furrow Sankaty Head Golf Club, Inc. By: _________________________ Thomas Cunningham, President Siasconset Beach Preservation Fund, Inc. By: ___________________________ Joshua Posner, President Town of Nantucket By and through its Board of Selectmen: ___________________________ ___________________________ John W. Atherton Tobias Glidden ___________________________ ___________________________ Dawn Hill Holdgate Robert DeCosta ___________________________ Matthew Fee 6 EXHIBIT A PROPOSAL FOR ALTERNATIVE ACCESS TO NORTH END OF BAXTER ROAD Baxter Neighbors Improved Property Title Holder Property Address Parcel No. on Assessor’s Map 48 Sconset Trust, Inc. 122 Baxter Road 5 James E. Walker, III and Deborah C. Walker 104 Baxter Road 40 David S. and Dorothy O. Bailey 100 Baxter Road 42 Donald E. Claudy, as Trustee Baxter Nominee Trust 115 Baxter Road 10 Kyle L. Latshaw and Loretta A. Yoder 113 Baxter Road 11 John P. and Susan D. DeAngelis 109 Baxter Road 12 Janice S, Savery 98 Baxter Road 43 Alexander III and Laura R. Webb 96 Baxter Road 44 Daniel L. Korengold, Trustee of D & M Baxter Road Nominee Trust 92, 94 Baxter Road 45.23 Laurnace J. and Jane S. Guido 90 Baxter Road Map 49, Parcel 5 86 Baxter Nominee Trust 86 Baxter Road Map 49, Parcel 36 Vacant Land Sconset Trust, Inc. 119 Baxter Road 7 Stephen B. Cohen 117 Baxter Road 9 Whitney A. Gifford, as Trustee S.C. Nominee Trust 107A Baxter Road 14 Whitney A. Gifford, as Trustee S.C. Nominee Trust 107 Baxter Road 14.1 William B. and Marilee B. Matteson 105 Baxter Road 15 101 Baxter Road LLC 101 Baxter Road 17 Ann B. Furrow 99 Baxter Road 18 Lawrence C. and Margaret McQuade 97 Baxter Road 19 Steven T and Erin F. Freeman 93 Baxter Road 21 Daniel L. Korengold, Trustee of D & M Baxter Road Nominee Trust 91 Baxter Road 45.23 Samuel and Ann Furrow 87 Baxter Road Map 49, Parcel 8 Jay W. Wertheimer, Trustee of Eighty Five Baxter Road Nominee Trust 85 Baxter Road Map 49, Parcel 35 7 EXHIBIT B PROPOSAL FOR ALTERNATIVE ACCESS TO NORTH END OF BAXTER ROAD 8