Canton, Massachusetts · Saved source text
Mitigation Agreement - Stoughton March 26, 2002
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Source page 1
THIS AGREEMENT made and entered into this 26th day of , March, 2002,
between the Town of Canton (hereinafter "Canton") and the Town of Stoughton (hereinafter "Stoughton")
each acting by and through its respective Board of Selectmen.
WHEREAS, the parties are authorized by article LXXXIX of the amendments to the state constitution to
exercise a wide variety of functions, and
WHEREAS, specific authority for Stoughton, with the permission of the Canton Board of Selectmen, to
lay pipes for the transmission of water in Canton public ways, subject to the terms and conditions
imposed by the Canton Board of Selectmen are made available, in sections 39 and 42 of Chapter 40,
(Massachusetts General Laws, hereafter MGL); and
WHEREAS, at present there is a severe water shortage in Stoughton, and
WHEREAS, on November 29, 2001 Chapter 165 of the Acts of 2001, AN ACT REQUIRING THE
MASSACHUSETTS WATER RESOURCES AUTHORITY TO PROVIDE WATER TO THE TOWN OF STOUGHTON was
approved, and
WHEREAS, the Stoughton - MWRA Connection Transmission Main (hereafter S-MCTM) has been
approved by the Massachusetts Water Resources Authority (hereafter MWRA) and the Commonwealth
of Massachusetts, subject to Stoughton's obtaining the necessary access and certain easements through
Canton; and
WHEREAS, time is of the essence in the performance of both party's obligations hereunder to insure that
Stoughton maintains project eligibility under the State Revolving Fund Loan Program; and
WHEREAS, review and final approval of all project requirements, contract documents, drawings,
specifications etc. (which requirements shall become (as Appendix A) part of the entire agreement
between parties) by Canton is an indispensable element of this agreement; .
NOW THEREFORE, in consideration of the mutual covenants and agreements hereinafter contained, the
parties agree as follows:
1. Purpose/Intent
1.1 The parties intend that the municipal corporations entering into this Agreement shall be the sole
and exclusive beneficiaries of the Agreement. Subject to the terms and limits of this Agreement
and of applicable state and federal law, the Town of Canton will provide certain access
easements and rights of way to the Town of Stoughton. In consideration of the inconvenience
and other disruption which the installation, repair, replacement, inspection, maintenance and use
of the pipeline in Canton by Stoughton will have on the inhabitants of the town of Canton,
Stoughton agrees to pay to Canton (due on or before August 31, 2002), the sum of One Million
Eight Hundred Thousand and 00/100 ($1,800,000.00) Dollars in mitigation. The payment
required by this paragraph is non-refundable.
1.2 This Agreement shall not take effect until it has been authorized by the Canton Board of
Selectmen, by the Stoughton Board of Selectmen and by the MWRA as may be required by law
and by this agreement.
1.3 Stoughton shall at all times during the term of this agreement be in compliance with all state and
federal laws and regulations, and with the water quality standards, orders, decrees enacted,
issued or otherwise promulgated by any state and/or federal governmental authority having
jurisdiction over the transmission of water.
1.4 Canton shall provide access easements in all public ways and on all Town property as may be
necessary for the construction, maintenance, repair and replacement of the water main In the
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event that access is required over land which is subject to the restrictions on use which are
provided in Article 97 of the amendments of the Constitution of the Commonwealth, Canton
shall cooperate with Stoughton to obtain all authorizations so required.
1.5 Stoughton shall be responsible for all costs associated with the construction and maintenance of
the S-MCTM and its appurtenances.
1.6 Construction of the S-MCTM shall be subject to any and all conditions listed in section 9 and in
the attached appendices.
2. Amendments
2.1 No officer, official, agent, or employee of Canton or Stoughton shall have the power to revoke,
amend, modify or alter this Agreement or waive any of its provisions or to bind Canton or
Stoughton by making any promise or representation not contained herein except by an
amendment, in writing, executed by both municipal corporations in the same manner as this
Agreement is executed. Neither party may rely on any conduct, statements, action, inaction or
course of conduct of the employees, agents or officers of the other party as having changed,
modified or amended this Agreement. Neither party shall be construed as waiving any provision
of the Agreement unless the waiver is executed in writing as an amendment to this Agreement.
No waiver by either party of any default or breach shall constitute a waiver of any subsequent
default or breach. Forbearance or indulgence in any form or manner by either party shall not be
construed as waiver of any term or condition hereto nor shall it limit the legal or equitable
remedies available to that party.
3. Assignment
3.1 This Agreement shall not be assigned or transferred by either party, without the express written
consent of the other party given with the same formalities as are required for the execution of
this Agreement.
4. Hold Harmless/Indemnification
4.1 To the extent permitted by law, Stoughton hereby agrees to indemnify and save harmless Canton
or its agents against any and all liability or claims arising from the negligent or willful acts or
omissions of Stoughton or its agents or employees relating to Stoughton's performance under
this Agreement, including but not limited to liability deriving from state and federal findings or
orders or actions or claims for damages on account of injury to person, or property or the
environment caused by any act or omission of Stoughton, its agents or employees. This
paragraph shall apply during construction and installation of the S-MCTM and during the full
term of this agreement.
4.2 To the extent permitted by law, Canton hereby agrees to indemnify and save harmless Stoughton
or its agents against any and all liability or claims arising from the negligent or willful acts of
Canton or its agents or employees relating to Canton's performance under this Agreement,
including but not limited to liability deriving from state and federal findings or or orders or
actions or claims for damages on account of injury to person, or property or the environment
caused by any act or omission of Canton, its agents or employees. This paragraph shall apply
during construction and installation of the S-MCTM and during the full term of this agreement.
5. Force Majeure
5.1 No failure or delay in performance shall be deemed to be a breach of this Agreement when such
failure or delay is occasioned by or due to any Act of God, strike, lockout, terrorism, war, riot,
epidemic, explosion, sabotage, the binding order of any court or governmental authority, or any
other cause whether of the kind herein enumerated or otherwise not within the control of the
party against whom a breach is alleged.
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6. Reports/Records
6.1 Annually, during the first week of January, Stoughton and Canton shall mutually exchange
records pertinent to maintenance and repairs for the S-MCTM. Stoughton shall also, at this time,
furnish data on the expected schedule of maintenance and repair work for the upcoming year
describing in detail the maintenance and repair work is to be performed. The said schedule shall
be approved in advance by Canton before any such work shall be performed by Stoughton All
work performed shall be by a contractor licensed by the Town of Canton.
6.2 Stoughton shall furnish S-MCTM system "as built" plans to Canton.
6.3 Stoughton shall notify Canton in writing and keep Canton informed of the name and title of its
official or officials responsible for water supply services in Stoughton and for implementation
of the terms of this Agreement.
6.4 Canton shall notify Stoughton whenever it intends to begin any construction within 10 feet of the
S-MCTM. This notice is not intended to be a substitute for notice required by "dig safe" or by
other utilities having rights to install and maintain underground transmission facilities in the
same right-of-way.
7. Inspections/Repairs
7.1 Canton shall have a continuing right to inspect and test any infrastructure/equipment which
Stoughton has installed under the Agreement. Canton can require Stoughton to repair and
replace any such infrastructure/equipment if it is demonstrated not to perform or meet current
system standards. If Stoughton fails to replace or repair any such item, within a reasonable time
under the circumstances and as set forth in written notice to Stoughton, Canton may do so and
charge such costs as it may incur to Stoughton. A report from the consulting engineers retained
by Canton for water distribution purposes shall be deemed conclusive as to the need for such
replacement.
7.2 All repairs, emergency or otherwise, to the S-MCTM shall be made by a mutually agreed upon
contractor licensed by Canton. A Canton street opening permit will be obtained for each street
opening required.
8. Remedies
8.1 In addition to any other remedies, power and authority which Canton and Stoughton may have
under state general and special laws and under the by-laws and rules and regulation of the Town
of Canton and the Town of Stoughton, the following remedies shall apply:
a) If either party fails to fulfill any material obligation or condition of this Agreement
prior to the delivery of the payment called for in Paragraph 1.1 hereof, the other party has the
right to terminate this Agreement by giving thirty (30) days notice, in writing, of its intent to do
SO.
b) Both parties reserve the right, either in law or equity, by suit, and complaint in the
nature of mandamus, or other proceeding, to enforce or compel performance of any or all
covenants herein.
c) If either party fails to perform any obligation under this Agreement, the other party may
perform on behalf of the defaulting party and charge the reasonable costs thereof, including
administrative time, to the defaulting party as a sum due under the Agreement provided written
notice is given to the defaulting party allowing it a reasonable time to cure the default.
d) The remedies set forth in this Agreement are cumulative. The election of one does not
preclude use of another.
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9. Emergencies/Other Conditions
9.1 Each party shall immediately notify the other party of any emergency or condition in either
party's system of which it learns may affect the water supply system in either municipality.
9.2 In the event of an emergency, Canton may take emergency action to stop, prevent or lessen any
discharge from the S-MCTM.
9.3 Any damages, as a result of breaks or discharges from the S-MCTM, shall be solely the
responsibility of Stoughton.
9.4 Conditions to apply during construction and maintenance(non-emergency):
A. Work in the roadway shall only be conducted during the hours of 9:00am to 3:00pm.
B. No work will be allowed on weekends or holidays without prior approval of the Canton
Board of Selectmen.
C. All Police details shall be coordinated, managed and assigned through the Canton
Police Department. It is the responsibility of Stoughton and persons acting in behalf of
Stoughton to initiate contact with the Canton Police Department whenever any work is
to be done in the right-of-way to make such arrangements as may be necessary.
D. All repairs shall meet all required standards, including, but not limited to "ADA".
E. All street resurfacing shall be done from curb to curb (or edge to edge).
10. Canton/Stoughton Employees
10.1 Employees, servants, or agents of either municipality shall not be deemed to be agents, servants
or employees of the other municipality for any purpose including but not limited to either
Workers' Compensation or unemployment insurance purposes.
11. Use Restriction
11.1 Subject to applicable law and MWRA use regulation, Stoughton shall use the water transmission
main under this Agreement solely for its public water supply. Stoughton shall not permit any
water furnished hereunder to be used by any person outside of Stoughton's territorial limits
without the express written consent of Canton in each instance.
12. Capital Improvement Provision
12.1 Stoughton shall design, construct and maintain a transmission main and related structures from
the existing water main off Dedham Street in Canton to Stoughton town line on Pine Street. All
construction documents including traffic management plans and permits shall be submitted to
Canton for review and approval. Stoughton will pay the cost for this review. The design shall
be approved by Canton prior to the start of construction; such approval shall not be unreasonably
withheld or delayed. The Canton Public Works/Water and Sewer Division will monitor
construction activity. The Canton Public Works/Water and Sewer Division shall have approval
authority for quality control; such approval shall not be unreasonably withheld or delayed.
12.2 To the extent permitted by law, Stoughton agrees to indemnify and save harmless Canton from
any and all actions for damages arising out of the installation, construction and maintenance of
said transmission main and appurtenant structures within Canton. The installation and
construction of the transmission main by Stoughton shall be in conformity with all requirements
of the General Laws, including without limitation General Laws Chapter 30, section 39M,
relating to public construction projects. Stoughton shall also furnish proof of liability insurance
adding Canton as additional insured. The scope and limits of insurance shall be subject to
Town of Canton approval, such approval shall not be unreasonably withheld or delayed.
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12.3 All approvals, filings, permits, environmental or otherwise, required for the project shall be
obtained by Stoughton.
12.4 The parties agree that upon completion of the said transmission main, title to the water main and
appurtenant structures constructed by Stoughton shall remain with Stoughton and Stoughton
shall be responsible for the operation and maintenance of said improvements.
12.5 Canton shall provide to Stoughton all necessary easements for permanent and temporary
construction right of way access for transmission mains, and other appurtenant facilities located
in Canton, but constructed by Stoughton pursuant to this Agreement.
13. Enforcement Authority
13.1 Canton may enforce the terms and conditions of all permits issued by it under this Agreement;
and perform any other technical or administrative duties it deems appropriate. In addition,
Canton may, as agent of Stoughton, take emergency action to stop, prevent or lessen any
discharge which presents, or may present an imminent or immediate threat or danger to the
health, safety or welfare of human beings or which reasonably appears, in its discretion, to
threaten the environment, including system shut down during such occurrence.
13.2 The parties will review and revise this Agreement to ensure compliance with the applicable
local, state and federal laws and the rules and regulations promulgated thereunder as necessary,
but at least once every three years on a date to be determined by the parties.
14. Definitions of Terms
"Canton" shall mean the Board of Selectmen of the Town of Canton or, where appropriate, the
Town of Canton acting by and through its Department of Public Works/Water and Sewer
Division. The town of Canton may from time to time change or alter the office or agency which
shall be responsible for any particular duty under this agreement.
"MWRA" shall mean the Massachusetts Water Resources Authority.
"Stoughton" shall mean the Board of Selectmen of the Town of Stoughton or, where appropriate,
the Town of Stoughton acting by and through its Department of Public Works/Water and Sewer
Division. The town of Stoughton may from time to time change or alter the office or agency
which shall be responsible for any particular duty under this agreement.
"DEP" or "MA DEP" shall mean the Massachusetts Department of Environmental Protection.
"Person" shall mean every individual, partnership, corporation, municipal corporation, water
district, firm, association or group of individuals.
15. Service of Notice
15.1 All notices or communications permitted or required by this Agreement must be in writing
except in emergencies, and shall:
As to Canton, be delivered or mailed by certified mail, return receipt requested, to:
Superintendent of Public Works
Memorial Hall - 801 Washington Street
Canton, MA 02021.
As to Stoughton, be delivered or mailed by certified mail, return receipt requested, to:
Public Works-Difeeter t
.574, )47
- earl-Stfeet 9-50 eeitip
Stoughton, MA 02072.
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16. Forum and Choice of Law
This Agreement and any performance under it shall be interpreted and governed in accordance
with the laws of the Commonwealth of Massachusetts except for those requirements, terms,
duties and conditions regulated by federal law. Any and all proceedings or actions relating to
the subject matter herein shall be brought and maintained in the courts of the Commonwealth
which shall have exclusive jurisdiction thereof.
17. Regulatory Authority
This Agreement is subject to the lawful rules, regulations, decisions, order or directives of the
MWRA and of any agency of the state and federal government with jurisdiction over the parties
or subject matter of the Agreement.
18. Severability. Headings. Integration
If any provision of this Agreement is declared or found illegal, unenforceable or void, then both
parties shall be relieved of all obligations under that provision. The remainder of the Agreement
shall be enforced to the fullest extent permitted by law. The headings are used for reference only
and shall not be a factor in the interpretation of this Agreement. This Agreement shall supersede
all other verbal and written Agreements and negotiations by the parties relating to performance
of the obligations under this Agreement and contains to full and complete and integrated
agreement of the parties on the subject matters referred to herein which includes any appendices
hereto attached.
IN WITNESS WHEREOF, on the date first mentioned, the Boards of Selectmen of the Town of Canton
and the Town of Stoughton hereto executes this Agreement under seal, in quadruplicate copies.
When executed, the Agreement shall be recorded in the office of the Clerk of each municipality.
TOWN OF C TON
By
d legality By
,A(Aoot.44.••'-•%,
Superintendent, Public Works
electman
By
Selectman
By
Town Counsel Selectman
Public Works I ector
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