HomeMy WebLinkAboutCounty Commission Agenda 12-21-2011 - Packet_201402051654177783County Commission Agenda Protocol:
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From:Shirin Everett
To:Erika Mooney
Cc:Jeanne McKnight
Subject:NANT: Sewer Easement - Mass. Av.
Date:Tuesday, November 01, 2011 2:55:40 PM
Attachments:9@ry03!.DOC
Hi Erika:
The attorney representing Thomas Okonak and James Okonak (the “Owners”), the owners of lots
located on either side of Massachusetts Avenue, have requested the County to approve the certain
changes to the sewer easement to be granted by the County Commissioners to the Owners. See
email below. The requested changes are redlined in the attached Easement.
Our prior version of the Easement stated that the Owners’ rights would terminate if public sewer
becomes available to serve Lot B (the benefited property). The Owners ask that they be given 180
days from the date on which the public sewer becomes available to connect to the Town sewer.
Please let me know if this change is acceptable to the Commissioners.
The Easement also states that the Owners rights would terminate if a septic system is installed in
Lot B. The attorney has revised this to say that the Easements rights will terminate if a new septic
system is installed in Lot B. I assume that there is an existing septic system on Lot B, but that it is
not functioning. Could you please confirm?
Thank you.
Shirin Everett, Esq.
Kopelman and Paige, P.C.
101 Arch Street
Boston, MA 02110
Phone: (617) 654-1731
Facsimile: (617) 654-1735
Email: severett@k-plaw.com
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From: Kenneth Gullicksen [mailto:kag@readelaw.com] Sent: Monday, October 31, 2011 1:49 PMTo: Shirin EverettSubject: County Easement
Shirin:
As you may recall, this was withdrawn from the agenda because my clients were concerned
with changes to the Easement. Most importantly, knowing how difficult it can be to get all
necessary permits, schedule work and actually getting it completed in a timely manner, particularly
if you are not here to follow up on things, they were concerned that they would not be able to get
the work completed within 90 days. Accordingly, I have reinstated the reasonable period language,
but limited it to a maximum of 180 days. Please let me know if the attached is acceptable to you.
Thank you.
Kenneth A. Gullicksen
Reade, Gullicksen, Hanley & Gifford, LLP
Post Office Box 2669
Nantucket, Massachusetts 02584
508-228-3128
508-228-5630 fax
GRANT OF EASEMENT
The COUNTY OF NANTUCKET, acting by and through its County
Commissioners, having an address of 16 Broad Street, Nantucket, Massachusetts
02554 (“Grantor”), being the owner of the land now known as Massachusetts Avenue by
virtue of an Order of Layout and Taking recorded with Nantucket Deeds in Book 507,
Page 109, and registered with the Nantucket Registry District of the Land Court as
Document No. 72383, pursuant to Massachusetts General Laws Chapter 34, Section
14, for consideration paid of One Dollar ($1.00), the receipt and sufficiency of which is
hereby acknowledged, grants to R. THOMAS OKONAK and JAMES R. OKONAK,
Trustees under a Trust Agreement dated April 24, 1987 and registered with the
Nantucket Registry District as Document No. 46638 (“Grantees”), and those claiming
by, through or under them by instrument of record, as the owners of the land now
known and numbered as 20 and 23 Massachusetts Avenue, Nantucket, Massachusetts
(Lots 1, 2, 3, 4, 5, 61 and 62 in Block No. 30 on Land Court Plan 2408-Y (collectively,
“Lot A”) and Lot 1-A on Land Court Plan 2408-1 (“Lot B”), by virtue of Certificate of Title
No. 13,978, a non-exclusive easement in that area of Massachusetts Avenue shown on
the Exhibit Plan Of Land attached hereto as Exhibit A as “Waste Pipe Easement 7.5’
Wide” (the “Easement Area”) for the installation, use, repair, replacement, inspection
and maintenance of underground wires and conduits for the transmission of electricity
and underground sewer pipes (collectively, the “Facilities”), all for the purpose of
facilitating use of the septic or other sewage disposal system installed on Lot A to
service the single-family residence on Lot B.
The grant of this easement shall be for the sole benefit of Lot B, and shall terminate if
(a) a new septic or other sewage disposal system is constructed on Lot B after the date
of this Grant of Easement, (b) Lot B is used for other than single-family residential
purposes, or (c) public sewer becomes available to serve Lot B and Grantees have not
connected the dwelling on Lot B to such sewer within a reasonable time period after the
sewer becomes available, which period shall not exceed 180 days.
Grantees acknowledge and agree that the Easement Area is within the layout of
Massachusetts Avenue, a traveled, public way, and that the rights of Grantees
hereunder are subject to rights of the public to travel over the same by foot and motor
vehicles. Grantees shall not interfere with the use of the Easement Area by Grantor
and members of the public. In no event shall Grantees close the Easement Area to
public travel or impair such rights without having obtained Grantor’s written consent in
Deleted: is
writing at least fourteen (14) days prior to performing any such work, not to be
unreasonably withheld. Grantees shall, at Grantor’s request, install temporary fencing
around the Easement Area or take other reasonable measures during any construction
or disturbance of the Easement Area to ensure the safety of Grantor’s personnel,
persons on the Easement Area, persons driving on Massachusetts Avenue and the
general public, all at Grantees’ sole cost and expense. Grantee shall use diligent and
good faith efforts to minimize interference with Grantor’s and the public’s use of the
Easement Area.
Grantor reserves the right to use the Easement Area for any and all purposes, and to
allow the Town of Nantucket to use the Easement Area for any and all purposes,
including without limitation the installation of public utilities, provided that such use does
not interfere materially with Grantees’ use of the Easement Area for the purposes set
forth herein, other than temporarily during construction of such underground utilities.
Grantees shall not damage any utilities or other improvements now or hereinafter
installed on or under the Easement Area by Grantor or the Town of Nantucket or their
permittees or assignees. Grantees shall maintain the Facilities in good order and
condition. Any damage caused by Grantees or their agents, employees,
representatives, contractors or invitees (collectively, with Grantees, the “Grantee
Parties”) or the Facilities shall be repaired promptly by Grantees at their sole cost and
expense.
Grantees, by the acceptance of this easement agreement, agree that upon request of
Grantor, they shall relocate the Facilities to a new easement area at their expense if
requested by the Grantor, provided that such relocated easement area is reasonably
suitable for the intended purpose of this easement. Grantees agree to prepare a plan
showing the relocated easement area.
Grantor makes no representation, either express or implied, with respect to the
condition of the Easement Area. Grantees agree that they shall accept the Easement
Area in its “AS IS” condition and shall use the Easement Area at their own risk.
Grantees hereby release Grantor, its officers, employees, contractors and agents, from
any responsibility for the Grantees’ losses or damages related to the condition or use of
the Easement Area, except if caused by the gross negligence or willful misconduct of
Grantor its agents, employees or contractors, and Grantees agree and covenants 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 Grantor, including, without limitation, claims
for property damages, personal injury damages and any other damages relating to, or
arising from, Grantees’ activities on or about the Easement Area. Grantees
acknowledge and agree that Grantor shall have no obligation to maintain the Easement
Area for the benefit of the Grantee.
Grantees agree to indemnify, defend, and hold Grantor harmless from and against all
debts, demands, actions, causes of actions, suits, dues, sum and sums of money,
damages, liabilities and any and all claims, demands and liabilities whatsoever of every
name and nature, both in law and equity, arising out of or relating to: (a) the discharge,
release or threatened release at or from the Easement Area of oil or hazardous material
as defined under federal, state or local law which is caused by any of the Grantee
Parties,(b) any failure on the part of Grantees to comply with any provision or term
required to be performed or complied with by Grantees under this Grant of Easement,
and (c) for the death, injury or property damage suffered by any person on account of or
based upon the act, omission, fault, negligence or misconduct of any of the Grantee
Parties in connection with or related in any way to this easement, except to the extent
that such death, injury or damage is caused by the gross negligence or willful
misconduct of Grantor. The provisions hereof shall survive the expiration or termination
of this Grant of Easements.
The parties agree that upon any disruption of the surface of said Massachusetts Avenue
in the exercise of this easement, Grantees shall restore said road to its prior condition
as expeditiously as reasonably practicable, and at their own expense.
If Grantees fail to comply with the terms hereof, Grantor shall have the right, but not the
obligation, to make such repairs itself and charge the reasonable cost of the same to
Grantees. Grantees shall reimburse Grantor within thirty (30) days from receiving an
invoice for the same from Grantor, failing which Grantor shall have the right to file a lien
against Lot A and/or Lot B with the Nantucket Registry District of the Land Court.
All requirements set forth herein are independent of any permits, licenses or other
approvals that are applicable to the Easement Area, and/or Grantees’ use thereof.
Grantee shall observe and obey directives of Grantor, as well as all applicable laws,
bylaws, regulations and permitting or licensing requirements.
[signature page follows]
Executed and sealed this ____ day of ___________, 2011.
County of Nantucket,
By its County Commissioners
________________________
________________________
________________________
________________________
________________________
COMMONWEALTH OF MASSACHUSETTS
Nantucket, ss.
On this _______ day of _________, 2011, before me, the
undersigned notary public, personally appeared Patricia
Roggeveen, Rick Atherton, Whiting Willauer, Michael Kopko and
Robert DeCosta, proved to me through satisfactory evidence of
identification, which was __________________, to be the persons
whose names are signed on the preceding document, and
acknowledged to me that they signed voluntarily for its stated
purpose as County Commissioners of the County of Nantucket.
__________________________________
Notary Public
Printed Name:
My Commission Expires:
f:\wpopq\okonak\grant of easement.docx 433870/NANTCC/0001
Deleted: September
Deleted: September
GRANT OF EASEMENT
The COUNTY OF NANTUCKET, acting by and through its County
Commissioners, having an address of 16 Broad Street, Nantucket, Massachusetts
02554 (“Grantor”), being the owner of the land now known as Massachusetts Avenue by
virtue of an Order of Layout and Taking recorded with Nantucket Deeds in Book 507,
Page 109, and registered with the Nantucket Registry District of the Land Court as
Document No. 72383, pursuant to Massachusetts General Laws Chapter 34, Section
14, for consideration paid of One Dollar ($1.00), the receipt and sufficiency of which is
hereby acknowledged, grants to R. THOMAS OKONAK and JAMES R. OKONAK,
Trustees under a Trust Agreement dated April 24, 1987 and registered with the
Nantucket Registry District as Document No. 46638 (“Grantees”), and those claiming
by, through or under them by instrument of record, as the owners of the land now
known and numbered as 20 and 23 Massachusetts Avenue, Nantucket, Massachusetts
(Lots 1, 2, 3, 4, 5, 61 and 62 in Block No. 30 on Land Court Plan 2408-Y (collectively,
“Lot A”) and Lot 1-A on Land Court Plan 2408-1 (“Lot B”), by virtue of Certificate of Title
No. 13,978, a non-exclusive easement in that area of Massachusetts Avenue shown on
the Exhibit Plan Of Land attached hereto as Exhibit A as “Waste Pipe Easement 7.5’
Wide” (the “Easement Area”) for the installation, use, repair, replacement, inspection
and maintenance of underground wires and conduits for the transmission of electricity
and underground sewer pipes (collectively, the “Facilities”), all for the purpose of
facilitating use of the septic or other sewage disposal system installed on Lot A to
service the single-family residence on Lot B.
The grant of this easement shall be for the sole benefit of Lot B, and shall terminate if
(a) a new septic or other sewage disposal system is constructed on Lot B after the date
of this Grant of Easement, (b) Lot B is used for other than single-family residential
purposes, or (c) public sewer becomes available to serve Lot B and Grantees have not
connected the dwelling on Lot B to such sewer within a reasonable time period after the
sewer becomes available, which period shall not exceed 180 days.
Grantees acknowledge and agree that the Easement Area is within the layout of
Massachusetts Avenue, a traveled, public way, and that the rights of Grantees
hereunder are subject to rights of the public to travel over the same by foot and motor
vehicles. Grantees shall not interfere with the use of the Easement Area by Grantor
and members of the public. In no event shall Grantees close the Easement Area to
public travel or impair such rights without having obtained Grantor’s written consent in
writing at least fourteen (14) days prior to performing any such work, not to be
unreasonably withheld. Grantees shall, at Grantor’s request, install temporary fencing
around the Easement Area or take other reasonable measures during any construction
or disturbance of the Easement Area to ensure the safety of Grantor’s personnel,
persons on the Easement Area, persons driving on Massachusetts Avenue and the
general public, all at Grantees’ sole cost and expense. Grantee shall use diligent and
good faith efforts to minimize interference with Grantor’s and the public’s use of the
Easement Area.
Grantor reserves the right to use the Easement Area for any and all purposes, and to
allow the Town of Nantucket to use the Easement Area for any and all purposes,
including without limitation the installation of public utilities, provided that such use does
not interfere materially with Grantees’ use of the Easement Area for the purposes set
forth herein, other than temporarily during construction of such underground utilities.
Grantees shall not damage any utilities or other improvements now or hereinafter
installed on or under the Easement Area by Grantor or the Town of Nantucket or their
permittees or assignees. Grantees shall maintain the Facilities in good order and
condition. Any damage caused by Grantees or their agents, employees,
representatives, contractors or invitees (collectively, with Grantees, the “Grantee
Parties”) or the Facilities shall be repaired promptly by Grantees at their sole cost and
expense.
Grantees, by the acceptance of this easement agreement, agree that upon request of
Grantor, they shall relocate the Facilities to a new easement area at their expense if
requested by the Grantor, provided that such relocated easement area is reasonably
suitable for the intended purpose of this easement. Grantees agree to prepare a plan
showing the relocated easement area.
Grantor makes no representation, either express or implied, with respect to the
condition of the Easement Area. Grantees agree that they shall accept the Easement
Area in its “AS IS” condition and shall use the Easement Area at their own risk.
Grantees hereby release Grantor, its officers, employees, contractors and agents, from
any responsibility for the Grantees’ losses or damages related to the condition or use of
the Easement Area, except if caused by the gross negligence or willful misconduct of
Grantor its agents, employees or contractors, and Grantees agree and covenants 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 Grantor, including, without limitation, claims
for property damages, personal injury damages and any other damages relating to, or
arising from, Grantees’ activities on or about the Easement Area. Grantees
acknowledge and agree that Grantor shall have no obligation to maintain the Easement
Area for the benefit of the Grantee.
Grantees agree to indemnify, defend, and hold Grantor harmless from and against all
debts, demands, actions, causes of actions, suits, dues, sum and sums of money,
damages, liabilities and any and all claims, demands and liabilities whatsoever of every
name and nature, both in law and equity, arising out of or relating to: (a) the discharge,
release or threatened release at or from the Easement Area of oil or hazardous material
as defined under federal, state or local law which is caused by any of the Grantee
Parties,(b) any failure on the part of Grantees to comply with any provision or term
required to be performed or complied with by Grantees under this Grant of Easement,
and (c) for the death, injury or property damage suffered by any person on account of or
based upon the act, omission, fault, negligence or misconduct of any of the Grantee
Parties in connection with or related in any way to this easement, except to the extent
that such death, injury or damage is caused by the gross negligence or willful
misconduct of Grantor. The provisions hereof shall survive the expiration or termination
of this Grant of Easements.
The parties agree that upon any disruption of the surface of said Massachusetts Avenue
in the exercise of this easement, Grantees shall restore said road to its prior condition
as expeditiously as reasonably practicable, and at their own expense.
If Grantees fail to comply with the terms hereof, Grantor shall have the right, but not the
obligation, to make such repairs itself and charge the reasonable cost of the same to
Grantees. Grantees shall reimburse Grantor within thirty (30) days from receiving an
invoice for the same from Grantor, failing which Grantor shall have the right to file a lien
against Lot A and/or Lot B with the Nantucket Registry District of the Land Court.
All requirements set forth herein are independent of any permits, licenses or other
approvals that are applicable to the Easement Area, and/or Grantees’ use thereof.
Grantee shall observe and obey directives of Grantor, as well as all applicable laws,
bylaws, regulations and permitting or licensing requirements.
[signature page follows]
Executed and sealed this ____ day of ___________, 2011.
County of Nantucket,
By its County Commissioners
________________________
________________________
________________________
________________________
________________________
COMMONWEALTH OF MASSACHUSETTS
Nantucket, ss.
On this _______ day of _________, 2011, before me, the
undersigned notary public, personally appeared Patricia
Roggeveen, Rick Atherton, Whiting Willauer, Michael Kopko and
Robert DeCosta, proved to me through satisfactory evidence of
identification, which was personal knowledge, to be the persons
whose names are signed on the preceding document, and
acknowledged to me that they signed voluntarily for its stated
purpose as County Commissioners of the County of Nantucket.
__________________________________
Notary Public
Printed Name:
My Commission Expires:
f:\wpopq\okonak\grant of easement.docx
433870/NANTCC/0001