HomeMy WebLinkAbout2017-06-08 JM SC BOS Packet - Released JOIN SELECTMEN AND SCHOOL COMMITTEE MEETING
Thursday, June 8, 2017
Cafeteria, Public Services Building, 201 Bedford Street
6:45 PM
AGENDA
ITEMS FOR INDIVIDUAL CONSIDERATION
1. Selectmen and School Committee: Consider Clarke School Environmental Deed 6:45 p.m.
Restriction(15 min.)
ADJOURN
1. Adjourn 7:00 p.m.
A summit meeting of the Board of Selectmen, School Committee, Appropriation Committee and
Capital Expenditures Committee is scheduled to be held on Thursday, June 8, 2017 at 7:00 p.m. in
the Cafeteria, Public Services Building, 201 Bedford Street.
The next regular meeting of the Board of Selectmen is on Monday, June 19, 2017 at 7:00 p.m. in
the Selectmen's Meeting Room, Town Offices, 1625 Massachusetts Avenue.
Hearing Assistance Device.v Available on Reque.vt �� �� �
All agenda time and the order of items arm approximate and
subject to change. Recorded by LeWedia
AGENDA ITEM SUMMARY
LEXINGTON JOINT BOARD OF SELECTMEN AND SCHOOL COMMITTEE MEETING
AGENDA ITEM TITLE:
Selectmen and School Committee: Consider Clarke School Environmental Deed Restriction
(15 min.)
PRESENTER: ITEM
Pat Goddard, Director of Public NUMBER:
Facilities; Mina Makarious, Town
Counsel 1'1
SUMMARY:
See attached memo from Pat Goddard
SUGGESTED MOTION:
Move that the Board of Selectmen and School Committee vote to authorize the Town Manager to sign the
Grant of Environmental Restriction for the Clarke Middle School, between the Town and the Massachusetts
Department of Environmental Protection, in substantially the form presented.
FOLLOW-UP:
Town Manager will sign following final review and approval by DEP and EPA.
DATE AND APPROXIMATE TIME ON AGENDA:
6/8/2017 6:45 p.m.
ATTACHMENTS:
Description Type
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Patrick W. Goddard Tel: (781)274-8958
Director of Public Facilities Email:pgoddardglexingtonma.gov
June 2, 2017
Carl Valente and Mary Czajkowski
Re: Clarke Middle School Deed Restriction
The Environmental Protection Agency (EPA) has updated their regulations for polychlorinated
biphenyl (PCB)removal and disposal. As a result, the project to remove PCB contaminated
caulk at Clarke Middle School no longer requires the removal of brick that absorbed low levels
of PBC from exposure to the caulking. The regulations do require that the building owners
implement a Monitoring and Maintenance Plan to insure the safety of building users and that a
deed restriction be filed with the Registry of Deeds.
In 2010 the EPA regulations did not allow to leave the bricks in place and at Estabrook School
we would have needed to remove the bricks, along with the contaminated caulking, to continue
to use the school. We successfully managed an Operations and Maintenance Plan at Estabrook
for over three years until the building was demolished. At Clarke Middle School the plan is
similar, but all of the known PCB contaminated material has been removed. The plan requires
the following:
• Air sampling once per year. (Frequency can be reduced if results remain low)
• Surface sampling once per year. (Frequency can be reduced if results remain low)
• Periodic visual inspection of the encapsulant.
• All projects or work activities that may potentially disturb PCBs (window and facade
renovations) shall be evaluated by the Lexington Department of Public Facilities.
• Review of the MMP once per year.
• All accidental disturbances and/or releases of PCBs shall be reported immediately to
Lexington Department of Public Facilities for evaluation and follow up.
SAMUEL HADLEY PUBLIC SERVICES BUILDING•201 BEDFORD STREET•LEXINGTON,MASSACHUSETTS 02420
On Thursday June 8 t 6:45 PM Mina Makarious of Anderson & Kreiger will join us to discuss
the deed restriction for Clarke Middle School with the Board of Selectmen and School
Committee. Our goal is to have both boards approve the restriction. The EPA has this edited
version and we are awaiting their approval.
Let me know if you have any questions.
Pat
2
GRANT OF ENVIRONMENTAL RESTRICTION
15 U.S.C. §§ 2601, etseq., and M.G.L. c. 21E, § 6
Disposal Site Name: Jonas Clarke Middle School
Site Location: 17 Stedman Road, Lexington, MA
This Grant of Environmental Restriction (this "Grant")is by and between the TOWN OF
LEXINGTON, MIDDLESEX COUNTY, MASSACHUSETTS (the"Grantor") and the
MASSACHUSETTS DEPARTMENT OF ENVIRONMENTAL PROTECTION ("MassDEP"),
a duly-constituted agency organized under the laws of the Commonwealth of Massachusetts,
having its principal office at One Winter Street, Boston, Massachusetts 02108 (the "Grantee").
WITNESSETH:
WHEREAS, the Grantor is the owner in fee simple of that certain parcel of land located
at 17 Stedman Road in the Town of Lexington, Middlesex County, Massachusetts, with the
buildings and improvements thereon, known as the Jonas Clarke Middle School and numbered
on the Town of Lexington Assessors Plans as Map 32, Lot 177C, pursuant to a deed to the Town
of Lexington dated August 17, 1965 and recorded with the Middlesex South Registry of Deeds
(the"Registry") at Book 10904, Page 332, and which property is shown on a plan entitled
"Compiled Plan of Proposed School Site at Marrett Rd. and Stedman Rd., Lexington, Mass"
dated April 20, 1965 and recorded in the Registry as Plan No. 1014 of 1965 (the "Property").
The Property is more particularly bounded and described in Exhibit A, attached hereto and made
a part hereof,
WHEREAS, the Property is subject to covenants, restrictions, easements and other rights
and obligations under the terms and conditions of this Grant;
WHEREAS, in 2014, Grantor conducted an investigation of the Property during which
polychlorinated biphenyls ("PCBs")were detected in caulking, sealants, and concrete in a
building on the Property. PCBs are regulated by EPA pursuant to the Toxic Substances Control
Act("TSCA"), 15 U.S.C. §§ 2601 —2692, and regulations promulgated by the United States
Environmental Protection Agency ("EPA")thereunder at 40 C.F.R. Part 761;
WHEREAS, it was determined that the PCBs encountered at the Property exceeded
allowable PCB levels under 40 C.F.R. § 761.20(a), § 761.61, and § 761.62;
WHEREAS, on or about October 5, 2015, Grantor submitted to EPA for approval a PCB
Decontamination and Risk-Based Disposal Plan for the Property (the "Disposal Plan");
WHEREAS, pursuant to Section 6(e) of the Toxic Substances Control Act, 15 U.S.C.A. §
2605(e), and 40 C.F.R. Part 761, Grantor has undertaken remedial actions at the Property
conducted in accordance with a plan approved by the U.S. Environmental Protection Agency
("EPA")in a letter dated April 13, 2016, (the"Approval", attached hereto as Exhibit A), which
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Grant of Environmental Restriction
Clarke Middle School
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remedial actions include removing window/door caulk containing greater than or equal to 50
mg/kg PCBs and encapsulating building porous surfaces with PCB concentrations greater than
(>) 1 mg/Kg and decontaminating door and window frames;
WHEREAS, residual levels of PCBs remain within certain exterior window facades at
levels > 1 mg/Kg but at less than (<) 15 mg/Kg as shown on the plan attached hereto as Exhibit
B;
WHEREAS, the Remediation also includes that long-term monitoring and maintenance
of the > 1 mg/Kg PCB encapsulated surfaces be conducted pursuant to the EPA-approved
Monitoring and Maintenance Plan, dated (the"MMP"), attached hereto as
Exhibit C, which plan requires annual visual assessment of the encapsulated surfaces and, based
on the results of such annual assessment, the performance of certain repair and/or maintenance
activities as set forth in the MMP;
WHEREAS, EPA has required that Grantor prepare and record a deed restriction to
document PCB concentrations at the property and to establish use restrictions as applicable, as a
condition of the Approval;
WHEREAS, as provided for in the Disposal Plan, the Grantor has agreed to secure and
maintain the necessary deed restrictions;
WHEREAS, EPA has the right of an agency to enforce this deed restriction, but this right
is not an interest in real property; and
WHEREAS, pursuant to M.G.L. c. 21E, §§ 3(a) and 6, MassDEP is authorized to take all
action appropriate to secure to the Commonwealth the benefits of pertinent federal laws
regarding hazardous waste and to acquire an interest in real property if necessary to carry out the
purposes of Chapter 21E, and is willing to accept this Grant as Grantee;
NOW, THEREFORE, pursuant to the terms and provisions of the Disposal Plan and EPA
Approval identified above, and in accordance with the provisions of M.G.L. c. 21E §6, the
Grantor hereby GIVES, GRANTS and CONVEYS to the Grantee, as a gift, with QUITCLAIM
COVENANTS, an ENVIRONMENTAL RESTRICTION in, on, through, over and under the
Property. Said Grant is subject to the following terms and conditions:
1. Purpose. It is the purpose of this Grant to establish covenants and restrictions and
to convey to the Grantee real property rights involving access and enforcement, all of which shall
run with the land and which shall be binding upon Grantor and Grantor's successors, assigns,
and transferees in interest during their period ownership to facilitate the implementation of the
Disposal Plan and the MMP, and to protect human health and the environment by reducing the
risk of exposure to PCB. The rights granted to the Grantee, its successors and assigns, do not
provide, however, that a violation of this Grant shall result in a forfeiture or reversion of the
Grantor's or any of its successors, assigns, and transferees title to the Property or any portion
thereof.
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Grant of Environmental Restriction
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2. Applicability. The restrictions set forth in Paragraph 3 ("Restricted Uses and
Activities") shall not apply to any actions undertaken by:
A. EPA or Grantee, or their respective agents, representatives, contractors,
subcontractors or employees, pursuant to TSCA or its implementing PCB regulations; or
B. The Grantor, or its respective agents, representatives, contractors,
subcontractors or employees, in accordance with and pursuant to the Disposal Plan, and
any approval by EPA and/or MassDEP required thereunder;
provided, however, that if any action results in a change to those locations where PCBs > 1
mg/Kg remain (see Exhibit B), or other portions of the Property requiring further restriction under
TSCA or its implementing PCB regulations, then the party performing such response action shall,
in accordance with the requirements of Paragraph 12 ("Amendment and Termination"), (i) obtain
the Grantor's agreement to amend this Grant, including any Exhibit thereto, and/or to partially
release this Grant, as applicable, (ii)with the Grantor's agreement submit an application to the
Grantee and EPA for such an amendment, and (iii) ensure that all actions necessary to effectuate
such an amendment and/or partial release are taken.
3. Restricted Uses and Activities. Grantor hereby subjects the Property to, and agrees to
comply with, the following:
a. All uses of the Property must be conducted in a manner that complies with,
and allows full performance by the Grantee and its successors, assigns, and
transferees in interest of all obligations under, the Disposal Plan, the EPA
Approval, and the MMP.
b. Grantor and future owners and users of the Property shall be made aware that
the potential exists for PCB-contaminated building materials to be encountered
in certain building locations as shown on Exhibit B. Therefore, except in an
emergency, in which case EPA and DEP shall be notified of such activity as
soon as is practicable, Grantor and any subsequent owners during the period of
their ownership shall notify EPA and MassDEP prior to conducting any activity
which would cause contact, disturbance, or change in use with respect to these
locations, except:
i. In accordance with the MMP, as it may be modified from time to time
upon EPA approval; or
ii. For removal and disposal of PCB-contaminated materials conducted in
accordance with the requirements of 40 C.F.R. Part 761,Chapter 21E, or
any other applicable law.
4. Permitted Uses and Activities. The Grantor expressly reserves the right to
perform, suffer, or allow, or to cause any person to perform any use or activity in, on, upon,
through, over, or under the Property, including the encapsulated> 1 mg/Kg PCB locations, that
is consistent with and not prohibited or limited by the use restrictions described in Paragraph 3
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Grant of Environmental Restriction
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("Restricted Uses and Activities") of this Grant. The provisions of this Paragraph 4 ("Permitted
Uses and Activities") shall not release the Grantor or any other party from liability for releases of
oil or hazardous substances, nor shall this provision excuse the Grantor or any other party from
complying with any applicable Federal, State or local laws, regulations or ordinances.
5. Location of Records. A copy of the Disposal Plan and MMP shall be maintained
at the Property and with the Lexington Town Manager, 1625 Massachusetts Avenue, Lexington,
MA 02420.
6. Easement. In establishing this Grant, the Grantor hereby grants an easement for
the term of this Grant to the Grantee, its agents, contractors, subcontractors and employees to
pass and repass over the Property, for purposes of inspecting the Property to ensure compliance
with the terms of this Grant and for purposes of conducting the activities described in Paragraph
9 below. In addition to any rights already possessed by MassDEP and EPA, this Grant extends to
DEP and EPA, including their authorized employees, agents, representatives, and independent
contractors, without cost and upon presentation of credentials, a right of access to the Property for
the purposes of monitoring and enforcing this restriction.
7. Construction. This Grant shall be liberally construed to affect its purpose and the
policies and purposes of TSCA and the EPA Approval. If any provision of this Grant is found to
be ambiguous, an interpretation consistent with the purpose of this instrument that would render
the provision valid shall be favored over any interpretation that would render it invalid. Any
word or defined term contained in this Grant shall be read as singular, plural, masculine,
feminine or neuter as the context so requires.
8. Severability. The Grantor and Grantee hereby agree, in the event that a court or
other tribunal determines that any provision of this Grant is invalid or unenforceable:
A. That any such provision shall be deemed automatically modified to
conform to the requirements for validity and enforceability as determined by such court
or tribunal; or
B. That any such provision that, by its nature, cannot be so modified, shall be
deemed deleted from this Grant as though it had never been included.
In either case, the remaining provisions of this Grant shall remain in full force and effect.
9. Enforcement.
A. The Grantor expressly acknowledges that a violation of the terms of this
Grant could result in the following:
i. The assessment of penalties and other action by EPA or the Grantee,
and its respective successors and assigns, to enforce the terms of this
Grant, pursuant to TSCA, and its implementing regulations, and
other laws and regulations, as applicable; and
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Grant of Environmental Restriction
Clarke Middle School
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ii. Upon a determination by a court of competent jurisdiction, the
issuance of penalties, and/or equitable remedies which could include
the issuance of an order to modify or remove any improvements
constructed in violation of the terms of this Grant at the Grantor's
sole cost and expense, and/or to reimburse the Grantee for any costs
incurred in modifying or removing any improvement constructed in
violation of the terms of this Grant.
B. Notwithstanding any other provision of this Grant, all rights and remedies
(including without limitation sanctions and penalties) available hereunder shall be in
addition to, but not in lieu of, any and all rights and remedies (including without
limitation sanctions and penalties) at law or in equity, including under TSCA, which
rights and remedies the Grantee and EPA fully reserve. Enforcement of the terms of this
Grant shall be at the discretion of the Grantee, and any forbearance, delay or omission to
exercise its rights under this instrument shall not be deemed to be a waiver by the Grantee
of such term or any subsequent breach of the same or any other term, or of any of the
rights of the Grantee under this Grant.
10. Concurrence Presumed. It is agreed that:
A. The Grantor and all parties claiming by, through or under the Grantor shall
be deemed to be in accord with the provisions herein set forth; and
B. All such parties and any party claiming by, through, or under them, and
their respective agents, contractors, sub-contractors and employees, also agree that the
restrictions herein established shall not be violated and that their respective interests in
the Property shall be subject to the provisions herein set forth.
11. Incorporation Into Deeds, Mortgages, Leases, and Instruments of Transfer. The
Grantor hereby agrees to incorporate this Grant, in full or by reference, into all future deeds,
easements, mortgages, leases, licenses, occupancy agreements or any other instrument of
transfer, whereby an interest in and/or a right to use the Property, or any portion thereof, is
conveyed. Grantor shall notify Grantee and EPA at least thirty (30)before any conveyance of an
interest in any portion of the Property. The notice shall include the name, address, and telephone
number of the transferee, and a copy of the deed or other documentation evidencing the
conveyance.
12. Amendment and Termination.
A. Amendment or Termination by Consent. The terms and conditions herein
may not be amended or terminated except by a written instrument duly executed by
Grantor, the current owner Property at the time of the amendment or termination, and EPA
and MassDEP or their respective successors in legal function, which instrument is duly
recorded in the Southern Middlesex County Registry of Deeds.
B. Petition to Amend. Grantor or current owner of the Property may petition
the EPA and MassDEP to amend some or all of the covenants, restrictions, agreements and
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Grant of Environmental Restriction
Clarke Middle School
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obligations herein. The burden is upon the party seeking approval of the modification or
removal of a restriction to show that the restriction is no longer necessary to protect the
public health and safety and the environment. The EPA and MassDEP may agree to
remove or modify restrictions that in the exercise of their sole discretion the EPA and
MassDEP determine to be no longer necessary to protect the public health or the
environment. Any such amendment or termination of the Environmental Restrictions shall
comply with the provisions of this Environmental Restriction.
C. Recordation and/or Registration. The Grantor hereby agrees to record
and/or register with the appropriate registry of deeds and/or land registration office any
amendment to and/or release of this instrument, or other document created pursuant to
this instrument for which such recording is required, within thirty (30) days of the date of
having received from the Grantee and EPA any such amendment, release or other such
document executed by the Grantee and/or EPA evidencing the Grantee's and EPA's
approval, as appropriate, in recordable form. No more than thirty (30) days from the date
of such recording of said amendment, release and/or other such document, the Grantor
shall provide a certified registry copy of the amendment, release and/or other such
document to the Grantee, with a copy to EPA. The Grantor shall pay any and all
recording fees, land transfer taxes and other such transactional costs associated with any
such amendment or release.
D. Temporary Deviations. Temporary deviations from the obligations or
restrictions specified in this Grant may be approved by the Grantee and EPA in lieu of an
amendment to this Grant. Grantor may submit a written request to Grantee and to EPA to
temporarily deviate from specified requirements described herein for a specific purpose
and timeframe. The request shall reference this paragraph of this Grant, fully explain the
basis for the proposed temporary deviation, and demonstrate that protection of human
health and the environment will be maintained. Grantee and EPA will evaluate the
request and convey approval or denial in writing. Grantor may not deviate from the
requirements of this Grant until such approval has been obtained.
E. No Dedication Intended. Nothing herein shall be construed to be a gift or
dedication of the Property or any portion thereof to the Grantee, the EPA, or to the
general public for any purpose whatsoever; provided however that nothing herein shall
extinguish or modify any such prior gift or dedication of the Property.
F. Term. This Grant shall run in perpetuity and is intended to conform to
M.G.L. c. 184, § 26, as amended.
G. Notices. Any notice, delivery or other communication permitted or
required under this Grant, unless otherwise provided herein, shall be in writing and sent
by reliable overnight delivery service, delivered in hand or mailed by postage-paid
registered or certified mail, return receipt requested and shall be sent:
If to Grantor:
Town of Lexington
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Grant of Environmental Restriction
Clarke Middle School
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Attn: Town Manager
1625 Massachusetts Avenue
Lexington, MA 02420
If to Grantee:
If to EPA:
EPA New England,Region 1
5 Post Office Square, Suite 100
Boston,MA 02109-3912
Attn: Kimberly N. Tisa or successor in position
Notices or other communications shall be deemed given, if by overnight delivery
service, on the first business day following deposit with such delivery service; if by hand,
on the date of the receipt evidencing the hand delivery thereof, or, if by registered or
certified mail, three (3) days after deposit in the United States mail; provided that notice
of change of address shall be deemed effective only upon receipt.
H. Rights Reserved. It is expressly agreed that acceptance of this Grant by
Grantee shall not operate to bar, diminish, nor in any way affect any legal or equitable
right of the Grantee or EPA to issue any future order with respect to the Property or in
any way affect any other claim, action, suit, cause of action, or demand which the
Grantee or its successors or assigns may have with respect to the Property.
I. Governing Law. This Grant shall be governed by and interpreted in
accordance with the laws of the United States and the Commonwealth of Massachusetts,
as applicable.
J. Representations and Warranties. Grantor hereby represents and warrants
to Grantee and EPA that:
i. Grantee has the power and authority to enter into this Grant, to grant the rights
and interests herein provided, and to carry out all of Grantor's obligations
hereunder;
ii. this Grant will not materially violate or contravene or constitute a material
default under any other agreement, document or instrument to which Grantor
is a party or by which Grantor may be bound or affected; and
iii. Grantor is the sole owner of the Property and holds fee simple title, which is
free, clear, and unencumbered.
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Grant of Environmental Restriction
Clarke Middle School
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K. Captions. All captions and headings contained in this Grant are for
convenience of reference only, and shall not be used to govern or interpret the meaning or
intent of any provision of this document.
L. Effective Date. This Grant shall become effective upon its recordation
with the appropriate registry of deeds and/or land registration office. The Grantor shall
provide the Grantee with a certified registry office copy of this Grant within thirty (30)
days of recording.
No Massachusetts deed excise stamps are attached hereto, pursuant to Massachusetts
General Chapter 64D, § 1, because the Grantor is a city or town.
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Clarke Middle School
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WITNESS the execution hereof under seal this day of 20 .
Town of Lexington
GRANTOR
COMMONWEALTH OF MASSACHUSETTS
, ss
On this day of 20 , before me, the undersigned
notary public, personally appeared proved to me through
satisfactory evidence of identification, which were , to
be the person whose name is signed on the preceding or attached document, and acknowledged
to me that he/she signed it voluntarily for its stated purpose.
Notary Public:
My Commission Expires:
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Grant of Environmental Restriction
Clarke Middle School
Page 10 of 12
COMMONWEALTH OF MASSACHUSETTS
, ss
On this day of 20 , before me, the undersigned
notary public, personally appeared Bryan Olson, Director of the Office of Site Remediation &
Restoration of the United States Environmental Protection Agency, proved to me through
satisfactory evidence of identification, which was , to
be the person whose name is signed on the preceding or attached document, and acknowledged
to me that he signed it voluntarily for its stated purpose.
Notary Public:
My Commission Expires:
In accordance with M.G.L. c. 21E, § 6, as amended, the Commissioner of the Department
of Environmental Protection hereby approves this Grant of Environmental Restriction and
Easement(as to form only).
Date:
Commissioner
Department of Environmental Protection
Notary Public:
My Commission Expires:
Upon recording, return to:
Bureau of Waste Site Cleanup
Department of Environmental Protection
One Winter Street, 8th Floor
Boston, MA 02108
Attention:
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Grant of Environmental Restriction
Clarke Middle School
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List of Exhibits
Exhibit A Legal Description of the Property
Exhibit B Plan of Low Occupancy Areas
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Grant of Environmental Restriction
Clarke Middle School
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EXHIBIT A
Legal Description of the Property
A certain parcel of land in Lexington, Middlesex County, Massachusetts, together with the
buildings and structures thereon, bounded and described as follows:
Beginning at a point at the junction of the southerly side line of Marrett Road with the easterly
side line of Stedman Road; thence running easterly by a curve to the left having a radius of
312.93 feet, a distance of 130 feet, more or less, to a point; thence turning and running South
58°10'20" East, a distance of 397.97 feet to a point; thence turning and running South 28°19'50"
West, a distance of 284.23 feet to a point; thence running southwesterly a distance of 1220 feet,
more or less, to a point in the northerly boundary line of land of the Town of Lexington; thence
turning and running westerly along said land of the Town of Lexington, a distance of 489 feet,
more or less, to a point in the northerly terminus of that portion of Stedman Road shown on the
plan hereinafter mentioned as a public way, at its junction with the easterly side line of that
portion of Stedman Road shown on the aforesaid plan as a private way; thence turning and
running in a generally northerly direction along said easterly side line of that portion of Stedman
Road shown on the aforesaid plan as a private way, a distance of 1740 feet, more or less, to the
point of the beginning; all as shown and marked "Area—20 ± Acres" on a plan entitled
"Compiled Plan Of Proposed School Site At Marrett Rd. & Stedman Rd. Lexington, Mass.",
dated April 20, 1965, John J. Carroll, Town Engineer, to be recorded herewith.
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