Thompson Island Education Center, Inc. a Massachusetts charitable corporation, having a usual place of business at Thompson Island, P.O. Box 127, Boston, MA. 02127, and its affiliate Thompson Island Outward Bound Education Center, Inc., and their successors and assigns (collectively referred to herein as the "Grantor" or ''Thompson"), for consideration of Four Million Dollars ($4,000,000), hereby grants, with Quitclaim Covenants, in perpetuity and exclusively for conservation purposes, to the Commonwealth of Massachusetts, acting by and through its Department of Environmental Management, and its successors and assigns ("DEM"), and to the United States or America, and its successors and assigns, having an address c/o National Park Service (the "Park Service"), 1849 "C" Street, N. W., Room 2444, Washington, D.C., 20240, as tenants in common (each referred herein as the "Grantee" and collectively the "Grantees"), a Conservation Restriction pursuant to the provisions of Massachusetts General Laws Chapter 184, Sections 3133 as described below, for the purposes set forth in Article 97 of the Amendments to the Massachusetts Constitution ("Article 97), with respect to interests in certain parcels of land containing approximately 240.51 acres more or less, located in the City of Boston, Massachusetts and further described in Exhibit A attached hereto (referred to herein as the "Premises," "Thompson Island," or the "Island"). The premises consist of a "Building Envelope" of approximately 45.09 acres, more or less, and the remainder of the Premises, 195.42 acres more or less, being referred to herein as the "Conservation Area,” all as shown on a plan entitled “Plan of Land Thompson Island Boston Harbor, East Boston, MA 02128" prepared for MA Department of Environmental Management and the National Park Service, dated February 19, 2002, prepared by Coler & Colantonio, Inc., to be recorded herewith and made a part hereof and referred herein as the “Plan.”
1. Purposes.
Whereas, the Omnibus Park and Public land Management Act of 1996 Public Law 104-333,110 Stat. 4233, 16 U.S.C. 460kkk as amended (the “Governing Legislation”) establishes the Boston Harbor Islands National Recreation Area (the “Park Area”) to preserve the land and waters which comprise the Park Area, to improve access to the Boston Harbor Islands, to provide education and visitor information programs, and to manage the Park Area in partnership with the private sector, the Commonwealth of Massachusetts, the municipalities surrounding Massachusetts and Cape Cod Bays, certain private entities owning on or more of the Harbor Islands, including the Grantor, and certain other historical, business, cultural, civic, recreational and tourism organizations (as defined in the Governing Legislation, the “Boston Harbor Islands Partnership” or the “Partnership”); and
Whereas, the Secretary of the Interior is authorized pursuant to the Governing Legislation to acquire, in partnership with others, a less than fee interest in Thompson Island within the Park Area, of which the Grantor is the sole owner, and
Whereas, the Premises possess significant scenic landscape values, framing the rural beauty of the Island’s rounded hills, open fields, woodlands, salt marsh, and shoreline against the other Boston Harbor islands and the striking contrast of the Boston skyline to provide a unique and dramatic visual environment; and
Liam C. Floyd
Bourbeau & Floyd, LLP
50 Beacon Street
Boston, MA 02108
Whereas, the Conservation Area provides important opportunities for public access and recreation as part of the Boston Harbor Islands National Recreation Area, including appropriate passive recreational pursuits for the general public such as unescorted walking, trail use, beach-combing, nature observation, and enjoyment of scenic views; and
Whereas, the Premises constitute an outdoor classroom that afford the youth and adults of the Greater Boston area the opportunity for unusual learning experiences and educational programs through the continuation and further development of the educational programs of the Grantor as a part of the Boston Harbor Islands Partnership consistent with the terms and conditions of this Restriction, so as to provide to the citizens who utilize the Park Area the benefit of the active environmental and educational programs of the Grantor to complement the more traditional Park Area activities; and
Whereas, the Grantor is currently providing extensive educational programs through resident and non-resident activities available to the public on a free and substantially subsidized basis, focused on youth but also including adults, and such programs are educational mission programs of benefit to the public; and
Whereas, the Premises are located on Thompson Island, which is listed in the National Register of Historic Places in its entirety for the prehistoric archaeological resources located therein; and whereas, the island may contain significant historic period archaeological resources which may be eligible for listing in the National Register of Historic Places; and
Whereas, the Premises are an island drumlin that possess important habitat, including beach, saltmarsh, grasslands and woodlands, for native flora and fauna, particularly for bird species as the Premises include the largest functioning saltmarsh of any of the islands in Boston Harbor, and
Whereas, the purposes of this Restriction include retaining the Conservation Area predominantly in its natural, scenic, and open condition; protecting and promoting the conservation of forests, meadows, wetlands, soils, ponds, coastal resources, and wildlife; allowing public access for nature observation, walking, and enjoyment of the scenic and open space resources of the Conservation Area as specifically provided for herein; and consistent with the permitted uses as set forth herein, including without limitation, the continuing education programs of the Grantor, preventing any use of the Conservation Area that will significantly impair or interfere with the ecological, scenic, recreational, educational, scientific, archaeological, and open space values (collectively, “conservation values”); and
Whereas, to accomplish all of the foregoing purposes the Grantor and the Grantees have agreed upon the terms and conditions of this Restriction as constituting an appropriate balance between (i) the continued growth and development of the Grantor’s educational programs as a part of its unique role in providing such active outdoor environmental education programs as a part of the Boston Harbor Islands Partnership, (ii) enjoyment of access to the natural environment of the Conservation Area by members of the public on both an escorted and unescorted basis, and (iii) protection of the natural environment of the Island from damage and overuse. Now, therefore, in consideration of the above and the mutual covenants, terms, conditions and restrictions contained herein, the Grantor covenants for itself and its successors and assigns, that the Premises will at all times be held, used and conveyed subject to and not used in violation of the restrictions and prohibitions set forth in Section 2 below, which shall run with the Premises, in perpetuity, as said restrictions are limited or affected by the provisions of Section 3 (“Reserved Rights”) or the provisions of Section 4 (Public Access to the Conservation Area; Coordination with Grantor’s Environmental Programs”).
2. Prohibited Activities.
Subject to the Reserved Rights of the Grantor described in Section 3 below and the agreement of the parties to provide for Public Access to the Conservation Area in coordination with the Grantor’s continuing environmental programs as described in Section 4 below, the following restrictions shall apply to the Premises:
(a) The Conservation Area (including, without limitation, any body of water thereon) shall be continued predominantly in its present undeveloped and natural condition and shall not be used for residential, industrial, or commercial use except as permitted by the terms of this Restriction, or any other use which is inconsistent with the intent of this Conservation Restriction, being the perpetual protection and preservation of the Conservation Area and its natural resources, except as expressly permitted in this Restriction.
(b) No residential dwelling or other building, mobile home, tennis court, artificial swimming pool, landing strip, asphalt or concrete driveway or road, billboard or other advertising display, utility pole, tower, conduit or line, equipment, fixture, trailer, antenna, dock, pier, boat landing, septic system or other temporary or permanent structure or improvement shall be constructed, place or permitted to remain on the Conservation Area except such structures as are expressly permitted in this Restriction.
(c) No loam, peat, gravel, soil, sand, rock or other mineral resource, or natural deposit shall be mined, excavated, dredged, or removed from the Conservation Area, except to the extent necessary for excavation required to erect structures and facilities, construct trails, or conduct sound agricultural, silvicultural, or wildlife habitat management practices as allowed in Sections 3.2 or 4 hereof, and except for archaeological investigations pursuant to paragraph 3.2(h). No archaeological field investigation shall be conducted for any purpose, except the field surveys and subsurface investigations authorized by the State Archaeologist of the Massachusetts Historical Commission pursuant to paragraph 3.2 (h).
(d) No soil, refuse, trash, vehicle bodies or parts, rubbish, debris, junk, waste, low level radioactive or hazardous waste (except as permitted under the Massachusetts Contingency Plan) or other substance or material whatsoever shall be placed, stored, dumped or permitted to remain on the Conservation Area, excepting the temporary placement of soil to the extent necessary for excavation required to install and erect the structures or facilities allowed in Sections 3.2 or 4 hereof and any debris deposited on the beaches by wave actions.
(e) No trees, shrubs or other vegetation on the Conservation Area shall be cut, removed or destroyed, except that the Grantor may perform such cutting, pruning, mowing, burning, and removal as shall be dictated by sound agricultural, silvicultural or wildlife habitat management practices, to preserve or provide vistas, and as otherwise expressly permitted in this Restriction.
(f) No activities shall be carried out which are detrimental to drainage, flood control, water conservation, water quality, erosion control, or soil conservation, except for any temporary impacts permitted by applicable laws and regulations as reasonably necessary for purposes of exercising any of the reserved rights in Sections 3 or 4.
(g) No activities shall be carried out which are detrimental to archaeological conservation.
(h) No use will be allowed on the Conservation Area of automobiles, trucks, motorcycles, motorized trail bikes, all-terrain vehicles, snowmobiles, or any other motorized or power-driven vehicles, excepting from this provision motorized wheelchairs and vehicles used by the Grantor and its employees and agents as reasonably necessary for purposes of exercising any of there served rights in Sections 3.2 or 4, or as required by police, firemen, or other governmental agents in carrying out their lawful duties.
(i) No commercial or industrial use of any kind shall be permitted on the Conservation Area, including but not limited to use as a commercial camping, hunting, trapping, fishing, or sporting club or facility, or any institutional use inconsistent with the purposes of this Restriction, except as expressly permitted in this Restriction.
(j) No planting of any invasive exotic plant species, identified as such on lists maintained by the Division of Fisheries and Wildlife’s Natural Heritage and Endangered Species Program, shall be permitted.
(k) No use shall be made of the Premises, and no activity shall be permitted thereon, which is inconsistent with the terms of this Restriction. No activity (including, but not limited to, drainage or flood control activities) shall be carried on which is detrimental to the natural resources of the Premises or detrimental to water quality, soil conservation, wildlife conservation, the protection of natural plant communities, rare, endangered or threatened species, or proper agricultural and/or forestry management practices or which is otherwise wasteful of the natural resources of the Premises.
(l) No subdivision or division of the Premises, or any portion thereof, into two or more lots (as compared to conveyance of the Premises in its entirety, which shall be permitted), shall be permitted without the express written permission of the Grantees, except for any such subdivision of the Premises required for the purpose of complying with applicable legal requirements for the construction, modification, renovation, repair or financing of new or existing structures to the extent permitted in Section 3 below, in which case reasonable advance written notice shall be given to the Grantees, but the Grantees shall not have a right to disapprove such a subdivision. The Grantee may, at its discretion, approve such other division of land as it deems necessary and appropriate to further the purposes of this Restriction.
3. Reserved Rights.
The Grantor reserves to itself and its successors and assigns the right to conduct or permit the following acts and uses. The exercise of any right reserved by the Grantor under this Section 3 shall be in compliance with all applicable federal, state and local laws. The inclusion of any reserved right in this Section 3 requiring a permit from a public agency does not imply that the Grantees take any position on whether such permit should be issued, but the failure of the public agency to take a position on any such permit shall not be assumed to imply disapproval by such agency.
3.1 Building Envelope.
(a) The Grantor retains a Building Envelope within which the Grantor has already constructed a pier and associated floats, access roads and paths, an athletic field, ropes course and associated climbing tower, and 14 buildings with a total habitable area of 94,000 square feet. The maintenance, repair, replacement and use of the existing structures and facilities are permitted by this Restriction.
(b) The Grantor shall have the right to replace, construct, repair, rehabilitate, demolish, reconstruct, modify, move, use, own, and occupy existing and additional buildings and structures within the Building Envelope, subject to the restrictions herein, all in compliance with applicable laws and regulations. The Grantor shall notify the Grantee prior to commencing construction of any new building or structure. The total habitable building square footage of permanent structures with the Building Envelope (as opposed to temporary educational structures referred to in Section 3.2[c]) is limited to no more than 180,000 square feet.
(c) Within the Building Envelope, the Grantor retains the right of use, maintenance, repair, construction, installation, relocation, removal and replacement of wells, septic systems, underground utility lines, underground telephone lines, and other facilities in support of the existing and additional structures permitted under paragraph (b) above. The Grantor also retains the right to pave, improve and extend the system of roads and paths within the Building Envelope to serve the buildings and structures permitted under this Restriction.
(d) No buildings or structures shall be located within the area marked as the “Quad” as shown on the Plan. No buildings or structures, except those used for marine purposes or utilities, including storage, shall be located within the two portions of the Building Envelope marked as “bufferstrips” as shown on the Plan, except for landscaping or other structures associated with visitor access located in the “Access Corridor” as shown on the Plan through the West buffer strip. The buffer strips between the beaches and the trails on the East and West sides of the Building Envelope as shown on the Plan shall be maintained as vegetated borders, allowing filtered views to and from the interior portions of the Building Envelope and the water.
(e) Repair, rehabilitation, and restoration of the exterior of the Hughes (c. 1902) and Lewis Gardner (c. 1882) buildings, as shown on the Plan, shall conform to the Secretary of the Interior’s Standards for Rehabilitation in force as of the date hereof, a copy of which is attached as Exhibit C.
(f) New construction within the Building Envelope in addition to the currently approved Program Building and new maintenance building in the location shown on the Plan, including new additions to existing buildings, shall be of high architectural quality and shall conform to the following criteria:
i. The siting, massing, and spatial relationship of new construction shall complement the campus setting as expressed in building design derived from classical styles with buildings generally rectangular in form that enclose courtyards and quadrangles. Individual buildings isolated from the campus shall be allowed within the Building Envelope subject to the limitations of paragraph 3.1(b) above, provided their siting, massing, and proportionality does not materially intrude on or materially diminish the integrity of the campus setting of the Building Envelope.
ii. No building shall be taller than four stories of fifty (50) feet in height (as height is currently defined in the Boston Zoning Code, a copy of a portion of which is attached here to as Exhibit D) which is the height of the roof line of the highest building existing at the time of this Restriction.
iii. New buildings shall be primarily composed of masonry materials or clad in wood, and all buildings and structures shall be designed, constructed, and reconstructed of compatible, relatively non-reflective building materials that blend into the surrounding landscape to the extent reasonably practicable.
iv. Solar panels shall be permitted to be installed on new and existing buildings, provided that reasonable efforts are made to make them as consistent with the design environment of the Building Envelope as is reasonably possible within the then currently available designs of solar panels.
(g) The use, maintenance, modification, and repair of the existing septic system, and the enlargement or replacement of the septic system within the Building Envelope as required to service the additional building permitted within the Building Envelope.
3.2 Other Reserved Rights.
Not withstanding any provisions of this instrument to the contrary, the Grantor hereby reserves to and for itself and its successors in title the right to conduct or permit the following activities on the Premises, subject to the provisions of Section 4 below with respect to public access to the Conservation Area:
(a) The operation of schools, educational centers and other charitable or educational activities on the Premises consistent with the charitable and educational purposes of the Grantor, including, without limitation, all of the traditional uses and activities of the Grantor, the continuation of which are recognized in the Governing Legislation and this Restriction as being of public benefit; and to use the Premises, including all existing and any new permanent structures, buildings and facilities permitted to be located on the Premises (as opposed to temporary educational structures referred to in Section 3.2 (c) below, for commercial, residential, and institutional uses, activities, and purposes, as such use categories are defined under Article 8 of the Boston Zoning Code as of the date hereof (collectively the “Permitted Uses”).
(b) Within the Conservation Area, subject to the provisions of paragraph 3.2 (p) (below), the use, maintenance, modification, and repair of underground utility lies, such as telephone, electric, and water mains, and the installation, use, maintenance, modification, and repair of new utility lines, including without limitation a sewer line, generally within the line of the road/gravel path which runs from the location shown on the Plan as “Approximate Proposed Building & Location” within the Building Envelope to the southerly end of the Island to the boundary of the Premises at the Mean Low Water Line. Any relocation or installation of such utilities shall be subject to prior written approval of the Grantee, which shall not be unreasonably delayed or withheld, provided there is no more than reasonable short term detrimental impact on the scenic, ecological, and/or archaeological integrity of the Conservation Area. No other new infrastructure shall be allowed in the Conservation Area, except for those approved by the Grantees.
(c) The repair, maintenance, modification, replacement, and use of educational structures within the Conservation Area, including climbing towers, lean-to's and comping platforms, including those currently existing and those authorized below in this paragraph (“temporary educational structures” as opposed to permanent structures referred to in Section 3.1[b]). Construction of not more than four (4) additional tent platforms, lean-to’s or other similar temporary educational structures related to the Grantor’s educational programs will be permitted, subject to prior written notification of the Grantees, in the general area of the eight (8) current Campsites shown on the Plan (the areas around the Campsites as shown on the Plan, the Ropes Course Areas as shown on the Plan and the Building Envelope are herein collectively called the “Activity Areas”.) All camp sites shall be limited in size to an area within a seventy-five (75) foot radius measured from the center of the tent platform. Construction of one major additional educational structure, such as a climbing tower or ropes course, and one smaller non-permanent educational structure larger than a lean-to or camping platform, shall be allowed within the Building Envelope at the general location of the Potential Future Ropes Course defined on the Plan in addition to the buildings permitted pursuant to Section 3.1(b). Periodic relocation of all such temporary educational structures within the Activity Areas to avoid overuse and other detrimental impact on the scenic landscape or ecological integrity of the Premises shall be permitted, subject to prior written notification of the Grantees. Any further or other relocation of existing temporary educational structures, other than in the Building Envelope, shall be subject to prior written approval of the Grantees, which shall not be unreasonably delayed or withheld, in which event no more than reasonable short term detrimental impact on the scenic landscape or ecological integrity of the Premises shall be permitted. Prior to undertaking any new construction or relocation of structures permitted in this paragraph (c). Grantor shall comply with the provisions of paragraph 3.2 (p) below.
(d) The reconstruction of the following two (2) historic structures on the Island, (i) the roof cellar, and (ii) the weather station, shall be permitted in their historic locations as shown on the Plan, subject to prior written notification of the Grantees, in accordance with the Secretary of the Interior’s Standards for Reconstruction and with the provisions of paragraph 3.2 (p) below.
(e) Subject to the provisions of paragraph 3.2 (p) (below) and to written approval of the Grantees, which shall not be unreasonably delayed or withheld, the installation of a wind turbine for alternative energy purposes, provided there is no significant and detrimental impact on the noise level, scenic landscape, archaeological or ecological integrity of the Premises.
(f) The construction, erection, use, and maintenance and use of trails, fences, observation blinds, boardwalks, benches, bridges, gates, stone walls, and other minor educational and recreational structures on the Premises, as reasonably necessary for the uses thereof or hereinafter permitted, or necessary and desirable in controlling unauthorized use or facilitating authorized use of the Premises. No new paved roads or paved trails shall be allowed in the Conservation Area.
(g) The construction, erection, use, replacement, and maintenance of signs or kiosks that are consistent with the Park Area standards, as indicated in the Access Plan, setting forth restrictions on the use of the Conservation Area, communicating information about trails, locations, natural features, flora and fauna or similar items.
(h) The conduct of archaeological activities, including without limitation survey, excavation and artifact retrieval, following submission of an archaeological field investigation plan and its approval by the Grantee and the State Archaeologist of the Massachusetts Historical Commission (or appropriate successor official).
(i) The conduct of sound agricultural and horticultural uses on the Premises existing at the time of this Restriction or which have historically been used for such purposes, including mowing and grazing of existing fields and meadows, the installation of fences, and the clearing of invasive woody growth. If said agricultural uses cause significant detrimental impact on the scenic, ecological, or geological integrity of the Premises, or unreasonably impede UPA within the Conservation Area, the Grantor shall immediately cease such activities at the written request of either Grantee. Said agricultural uses shall be consistent with the Park Area standards and in accordance with the Wetlands Protection Act, the standards and practices generally approved by the University of Massachusetts, Cooperative Extension Service, or any successor thereto, and the applicable requirements, if any, of the United States Department of Agriculture, Natural Resource Conservation Service, regarding erosion control, sedimentation, and non-point source pollution control. Animal husbandry uses shall be permitted only with the Building Envelope.
(j) The conduct of sound silvicultural uses of the Premises, including selective pruning, cutting, and replanting to prevent, control or remove hazards, disease or insect damage, fire, or to preserve the present condition of the Premises, including vistas, woods roads, and trails.
(k) The temporary stockpiling and composting of stumps, tree and brush limbs, and similar biodegradable materials originating on the Premises in locations where the presence of such materials will not have a deleterious effect on the purposes of this Restriction, including scenic values, as well as the clearing and temporary stockpiling of debris originating from areas subject to tidal action.
(l) The management of the Conservation Area for the benefit of wildlife (including, without limitation, the planting and cultivation of wildlife cover) or cutting, mowing, pruning, burning, application of herbicide by a licensed applicator, or removal of vegetation to enhance and promote varied types of wildlife habitat consistent with sound wildlife management practices.
(m) The use and application within the Conservation Area and storage withing the Building Envelope, of herbicides, pesticides, insecticides, fungicides, or other chemicals or materials to further the goals of this Restriction, subject to notification of the Grantee in accordance with procedures set forth in Section 5 below. Such use shall be conducted in a safe and prudent manner, in conformity with existing federal and state law, the manufacturer’s requirements, and the specific recommendations, if any, of the University of Massachusetts, Cooperative Extension Service.
(n) The installation of erosion control measures on the steep shoreline bluff in the northern portion of the Premises, subject to prior written approval of the Grantee, which shall not be unreasonably delayed or withheld, provided there is no significant detrimental impact on the scenic landscape, ecological, archaeological or geological integrity of the Premises except to the extent any such impact is offset by the benefits of said erosion control measures, in the reasonable judgment of the Park Project Manager in consultation with the DEM Manager, and in accordance with the provisions of paragraph 3.2 (p) below.
(o) Consistent with the Grantor’s obligations set forth in Section 4 below, allowing public access to the Conservation Area compatible with the conservation values protected by this Restriction, collecting fees for organized programs on the Premises, imposing restrictions on the uses, activities, and hours of operation consistent with the Access Plan, maintenance and use of the trails, roads, and pier on the Premises, and maintenance of the meadows and fields on the Premises.
(p) Prior to undertaking any construction that involves excavation or other ground disturbance as permitted by paragraphs 3.2 (b),(c),(d),(e) or (n), Grantor shall consult with the Massachusetts Historical Commission to determine whether an archaeological investigation is required and shall adopt prudent and feasible alternatives that avoid, minimize or mitigate harm to significant archaeological sites.
4. Public Access to the Conservation Area; Coordination with Grantor’s Educational Programs.
(a) In addition to restrictions on structures, activities and uses as set forth in Sections 2 and 3 above, this Restriction is intended by the parties to provide for a long term, mutually advantageous sharing of activities, facilities and locations to advance the educational and environmental interests of the Park Area, the Partnership, the Grantor and the Grantees in a potentially synergistic relationship. The Grantor currently provides public access to the Premises through both its educational programs and through escorted tours of the Island (currently provided by the Friends of the Harbor Islands). Previously, it has not been within either the charitable/educational purposes of the Grantor as an educational institution or within its constrained charitable/educational budget to safely administer additional public access by individual members of the public on an unescorted basis without unacceptable risk to the safety of the individuals, the sensitive natural environment of the Premises, or the natural open space values required for the success of its educational programs. By the mechanism of this Restriction, the Grantor is adding the component of Unescorted Public Access (defined below) to the public benefits the Grantor has historically provided to the community, on a basis which does not jeopardize the viability or vitality of the outdoor-environmental educational programs which constitute its core charitable mission. It is also anticipated, as the opportunities of the Park Area develop, that the Grantor will be able to make its outdoor environmental education programs available on other Harbor Islands, to further broaden the opportunities for public participation.
(b) The applicable principles and required definitions agreed upon between the Grantor and the Grantees with respect to such Unescorted Public Access and educational programs, which are expected to remain relatively constant over a period of years are set forth in this Section 4, and the current detailed agreement and procedures for the administration of such Unescorted Public Access in close coordination with the Grantor’s ongoing educational programs, the details of which Unescorted Public Access the Grantor and Grantees agree may be revised from time to time by mutual agreement of the parties, are set forth in the Access Plan attach here to as Exhibit B and made a part hereof (the “Access Plan”). Although it is expected that the provisions of this Section 4 shall remain relatively unchanged over a longer period of time than any current Access Plan (and may never be changed), the Grantor and the Grantees recognize and explicitly agree (and by his/her acceptance of this Restriction the Secretary of Environmental Affairs recognizes and agrees) that because of the perpetual duration of this Restriction and the detailed operational requirements of the Section 4 to implement public access in close coordination with ongoing educational programs, it may be necessary to the effective implementation of the conservation purposes for which this Restriction is granted for the Grantor and the Grantees to amend this Section 4 of this Restriction to more effectively describe the then-current agreement of the Grantor and the Grantees with the approval of the Secretary, in a manner which is no less protective of the conservation values for which this Restriction has been established, without any necessity or requirement for legislative approval in the context of M.G.L. c.184, s. 31-33 or Article 97.
(c) The Grantor and the Grantees agree that the provisions of this Restriction and the current Access Plan constitute an appropriate balance between (a) the continued growth and development of the Grantor's educational programs as a part of its unique role in providing such active outdoor environmental education programs as a part of the Boston Harbor Islands Partnership, (b) enjoyment of access to the natural environment of the Conservation Area by members of the public on both an escorted and unescorted basis, and (c) protection of the natural environment of the Island from damage and overuse (hereinafter the “Education/Access Balance" or the "Balance”). The Grantor and the Grantees agree that any modification of this Section 4 or the Access Plan proposed or adopted shall not materially adversely affect such continued growth and development of the Grantor's educational programs or the protection or the natural environment of the Island from damage and overuse.
(d) For purposes of this Restriction and the Access Plan, the following terms shall have the following meaning: "Unescorted Public Access" (or "UPA") shall mean that members of the public who (1) have UPA Reservations, (2) enter the Premises from a scheduled UPA Ferry, (3) receive orientation from Thompson staff upon arrival and acknowledge agreement to follow applicable rules and practices, including limitations on areas of the Island open to UPA because of educational programs, hazards or overuse, and (4) conform to such rules and practices, shall have access to the portions of the Conservation Area designated pursuant to the Access Plan then in effect, either individually or in voluntary small groups without the requirement of an assigned guide or leader, for low-impact, non-motorized, non-commercial outdoor recreational use, including, but not limited to: walking, hiking, trail use, beach-combing, swimming, nature observation, photography, picnicking, cross-country skiing, educational walks, and other non-motorized outdoor recreational activities that do not materially alter the landscape nor degrade environmental quality. Unescorted Public Access includes access to the shoreline and beaches, but the number of persons counted as UPA does not include members of the public counted as Beach Access or Escorted Public Access. "Beach Access" means access by members of the public from individually-owned private boats to, and only to, the beaches at the perimeter of the Premises, and not access to the interior of the Conservation Area or the Building Envelope beyond the beach itself. The number of people engaging in Beach Access is not included in Unescorted Public Access. No Unescorted Public Access shall be allowed over the so-called "spit" from Squantum in any event. "Escorted Public Access" means organized groups of members of the public which are actively led and supervised during the duration of their stay on the Island by a leader with appropriate qualifications previously approved by the Grantor, which hold a Group Reservation."DEM Manager" means the person designated as such by the DEM Commissioner. "Park Project Manager" has the meaning given to it in the Governing Legislation, which for purposes of this Restriction shall mean the Secretary's Designee. "Secretary's Designee" shall mean the person designated as such by the Secretary of the Interior. "Thompson Administrator" means the person designated as such by the Grantor in writing to the Park Project Manager, as such designation may be altered from time to time, in writing to the Park Project Manager, by Grantor, its successors or assigns. "UPA Reservation" means a reservation for Unescorted Public Access for a specified time period on a specific day on which UPA is authorized, which is established and documented under a system which is the same or substantially similar to the system adopted for the small, sensitive public islands in the Park Area. "Group Reservation" means a reservation for Escorted Public Access for a specified time period on a specific day for a specific group and led by a leader with appropriate qualifications previously approved by the Grantor. "Summer Holidays" means Memorial Day, the July Fourth Holiday, and Labor Day. "UPA Ferry" means any duly licensed boat authorized by the Thompson Administrator and the Park Project Manager in consultation with the DEM Manager to discharge and pickup UPA visitors holding UPA Reservations at the Thompson Island Pier. The designation of UPA Ferry may be revoked by the Thompson Administrator for cause if there is reasonable evidence that the operation of the Ferry poses a potential risk to the safety of persons or property.
(e) The Grantor agrees to permit Unescorted Public Access to the Conservation Area on any weekend day of the year or Summer Holiday (or portion of a weekend day or Summer Holiday served by the UPA Ferry schedule), as described herein, and in the Access Plan as it may be amended from time to time except on up to three (3) days in any twelve month period to facilitate the programming of large events by the Grantor. The Activity Areas will be off limits to Unescorted Public Access at all times for safety reasons. Unescorted Public Access is not permitted to the areas shown on the Plan as the Saltmarsh, the lcepond Area, or the Pond Area (hereinafter the "Saltmarsh," the "lcepond Area," and the "Pond Area," respectively, and collectively the "Sensitive Areas"), except access to the Bird Blind as shown on the Plan (the "Bird Blind") via the trail shown on the Plan across the Building Envelope, which is permitted, and kayak access to the Saltmarsh originating outside the Saltmarsh around the time of high tide. Except in the case of unusual hazards, the beaches at the perimeter of the Premises shall be open to Unescorted Public Access, Escorted Public Access and Beach Access on days when each respective Access is authorized. The Thompson Administrator shall manage the scheduling of the Grantor's educational programs and both Escorted and Unescorted Public Access so as to achieve the Education/ Access Balance as defined above in this Section 4, and subject to the requirements for Unescorted Public Access set forth in this paragraph and the current Access Plan. For each weekend day and Summer Holiday, depending upon the number and nature of the educational programs which are scheduled, the Thompson Administrator shall determine, in his/her reasonable judgment, the number of people who can be permitted Unescorted Public Access without materially interfering with the educational programs or requiring additional supervision. In determining this number, the Thompson Administrator shall take into account the reasonable level of staffing required to protect the resources, and the details of the educational values of each program scheduled to be conducted, distinguishing between those programs which place a premium on solitude or preserving the uninterrupted atmosphere of the natural environment, and those in which such values are less important. If sufficient demand does not exist during the off-season winter months to justify the expense of administration and supervision, after reasonable efforts by the Grantor, the Grantees and the Partnership to make known the availability of the Island for seasonal activities such as cross-country skiing through distribution of materials as described in the Access Plan, the availability of Unescorted Public Access on winter weekends may be reduced by mutual written agreement of the Grantor and Grantee.
(f) The Grantor agrees to permit Escorted Public Access to the Conservation Area, including the Activity Areas except Activity Areas which are in use, and the Sensitive Areas, on any day of the week, with advance approval, consistent with scheduled educational programs and Unescorted Public Access in the reasonable discretion of the Thompson Administrator.
(g) The Grantor reserves the right to post and close to all Escorted and Unescorted Public Access specific areas when such areas could constitute a public safety hazard, or such areas that require protection from foot traffic from all visitors and users of the Island, such as archeological sites or areas of compacted soil, or to close the entire Island to public access if necessary for safety reasons.
(h) In the event that the use of the Premises becomes primarily one or more of the Permitted Uses that does not include education of members of the public as a primary part of its purposes or mission such that the Conservation Area is no longer being used for educational programming, Unescorted Public Access shall be permitted to the entire Conservation Area on weekends, except the Sensitive Areas because of their environmental sensitivity and potential hazards, subject to reasonable limitations necessary to protect and conserve the natural beauty and ecological resources or the Conservation Area, as reasonably determined by the Thompson Administrator and the Park Project Manager in consultation with the DEM Manager. In such event, Unescorted Public Access may be permitted to any portion of the Conservation Area except the Sensitive Areas during reasonable daylight hours on weekdays subject to the provision of reasonable supervisory staffing by one or more of the Grantees or, if the Grantor, its successors or assigns so elects and Grantees agree, by the Grantor, it successors or assigns.
(i) Consistent with Massachusetts General Laws chapter 21, § 17C, neither the Grantor nor the Grantees shall have any responsibility for providing active supervision of Unescorted Public Access. The Grantor has the right to provide appropriate management of public access and use, and the Grantor's staff shall have the right to terminate the UPA Reservation and status of any person who does not conform to established rules and practices for Unescorted Public Access, but the Grantor shall have no obligation to provide supervision beyond giving the orientation presentation described in the definition of Unescorted Public Access. The Grantees shall be under no obligation to provide such management or supervision. In connection with the operation of UPA Ferries to provide Unescorted Public Access to the Conservation Area, including any period when the Thompson ferry constitutes the sole UPA Ferry, the Grantor shall not have responsibility for, or any liability to, any person engaging in Unescorted Public Access who fails to timely board the last scheduled UPA Ferry departing Thompson Island on any day. The Grantor also has the right to maintain the natural beauty of the landscape by cleaning up and removing debris and elements unsightly to the natural landscape, but the Grantor shall have no obligation to do so in a manner which exceeds the needs and economic capabilities of its educational and charitable mission.
(j) The Grantor shall maintain the Premises' existing pier in a safe and serviceable condition consistent with the needs and economic capabilities of its educational and charitable mission, and which will provide for general public access by a UPA Ferry in accordance with the Access Plan.
(k) The Grantor shall maintain the existing open fields, as shown on the Plan, in a substantially similar condition as maintained at the time of the grant of this Restriction, to ensure maintenance of scenic vistas of the Premises, the mainland, and the other Boston Harbor Islands.
(I) The Grantor shalt maintain the extent of, and keep in good condition, the trail network accessing the full Conservation Area. The current approximate location of the trail network is shown on the Plan. The Grantor shall maintain such trails in a reasonable manner so that they are reasonably free from debris, limbs and any unreasonable hazards consistent with M.G.L. chapter 21, §17C.
(m) The Grantor shall make reasonable efforts to prohibit any person from vandalizing, looting or otherwise disturbing archaeological resources, and shall promptly report any such disturbance to the Massachusetts Historical Commission.
5. Notification; Decisions.
(a) Unless otherwise provided herein or by law, the Grantor shall notify the Grantees in writing at least forty-five (45) days prior to undertaking or allowing any uses or activities on the Premises which require notification or approval of the Grantees under Sections 2, 3, or 4 above, or that are contrary to the express purposes of this Restriction, or that will adversely affect the conservation interests found within the Premises. The notice shall describe the nature, scope, design, location, time table and any other material aspect of the proposed activity in sufficient detail to permit the Grantees to make an informed judgment as to its consistency with the purposes of this Conservation Restriction. Whenever the Grantor's or Grantees' consent or approval is required under the terms of this Restriction, the recipient(s) of the notice shall respond within 45 days of receipt of such notice (and may, at its option, make a finding, in writing, that the proposed activity or use shall or shall not have a deleterious impact on the purposes of this Restriction). Failure to respond in writing within such 45 day period shall be deemed to constitute approval of the action proposed in the notice as submitted, so long as the notice sets forth the provisions of this paragraph relating to deemed approval after the passage of time. In all events in which a decision, approval, judgment or agreement (in this Section 5 referred to as an "approval”) is to be made by both Grantees hereunder: (1) any required notice or request for such approval shall be given by notice as specified hereunder to both Grantees; (2) all further communications with the Grantor in connection with such requested approval shall be through and coordinated by the Park Project Manager, so as to avoid any duplicate, overlapping or inconsistent exchange of information; (3) in any situation in which any approval requested by the Grantor does not appear likely to be approved or has been determined by either of the Grantees on a preliminary basis will not be approved as requested by the Grantor, a representative of the Grantor shall be afforded at least one joint meeting with the ultimate decision maker(s) of both Grantees prior to the final decision; and (4) the formal approval or determination to approve or not to approve such request shall be given by the Park Project Manager in a form indicating that it is rendered on behalf of and is binding upon both of the Grantees.
(b) Any notices required by this Restriction shall be sent by registered or certified mail, return receipt requested, or by recognized overnight delivery service to the following address or such address hereafter as may be specified by notice in writing:
Grantee:
Commissioner
Massachusetts Department of Environmental Management
251 Causeway Street
Boston, MA 02114-2104
Grantee:
Superintendent
National Park Service
408 Atlantic Avenue, Suite 228
Boston, MA 02110
Grantor:
President
Thompson Island Education Center, Inc.
Thompson Island, P.O. Box 127
Boston, MA 02127
Any such notice shall be deemed to be effective on the date received or on which delivery is refused during regular business hours.
6. Enforcement and Legal Remedies or Grantor and Grantee.
(a) The Grantee's duly designated officers, directors, employees, representatives, and agents shall have the right to enter the Premises at reasonable times and in a reasonable manner for the sole purpose of inspecting compliance with this Restriction, provided that persons conducting such activity shall immediately register with the Grantor's duly designated staff on site when entering the Premises.
(b) In the event of a violation of the terms of this Restriction by any party, except when such violation will cause immediate irreparable harm, in which event the party seeking to enforce the terms of this Restriction may seek injunctive relief in connection therewith, such party shall give notice of such alleged violation to the other party, and request the other party to remedy such violation, including such particulars as will reasonably permit the party against which enforcement is sought to respond. If the parties cannot agree within a reasonable period of time, the parties agree to negotiate in good faith to attempt to resolve any dispute, including representatives of each party empowered to finalize a binding resolution of the dispute making themselves available on a reasonable basis to permit at least two face-to-face meetings. If such dispute shall not be resolved by agreement within thirty days of the second such face-to-face meeting, then, upon request of either party by written notice to the other, such dispute shall be submitted to a mutually-acceptable mediator for a period of sixty days from the date of such notice in an effort to resolve such dispute by mediation. If the violation is not remedied within a reasonable time after such mediation is completed or abandoned, the party seeking enforcement of the terms of this Restriction may enforce this Restriction by appropriate legal proceedings, including, without limitation, obtaining injunctive or other equitable relief against any violations, including without limitation relief requiring restoration of the Premises to its condition prior to any such violation (it being agreed that the Grantor or Grantee may have no adequate remedy at law), and shall be in addition to, and not in limitation of, any other rights and remedies available to either party. Enforcement of the terms of this Restriction shall be at the discretion of either party, and any forbearance by either party to exercise its rights under this Restriction shall not be deemed or construed to be a waiver.
(c) The Grantor agrees with the Grantees to continue to carry commercial general liability insurance covering its negligent acts and omissions in connection with its educational programs and other activities at such limits as it considers prudent for its then applicable programs and activities, and agrees to provide certificates of such insurance to the Grantees upon request. The Grantor further agrees to indemnify and hold harmless the Grantees for any loss--cost, damage, injury, claim--or liability within the scope of such insurance to the extent of the available proceeds of such insurance caused by the negligent acts or omissions of the Grantor, its employees, agents, contractors, clients, customers and its invitees which are related to the Grantor's activities, as opposed to members of the public engaging in public access to the Conservation Area pursuant to this Restriction who shall not be deemed to be invitees of the Grantor for purposes of this sentence. To the extent that the Grantor is reasonably able to (i) obtain insurance coverage covering the negligent acts or omissions of members of the public engaging in public access pursuant to this Restriction, and/or (ii) add each of the Grantees as additional named insureds on such policies, and/or (iii) obtain confirmation in the form of such policies or certificates thereof that the insurance company shall have no recourse against either of the Grantees for payment of any premium or assessment, in any such case without the payment of any additional premium or other modification of coverage, the Grantor agrees to make reasonable efforts to obtain and maintain such modifications of its insurance.
7. Immediate Vesting of Property Rights.
The Grantor and Grantee agree that the grant of this Restriction gives rise to a property right which vests immediately in the Grantee, and that the Grantor has retained fee title and use rights of substantial economic value. The Grantor and the Grantee are granting and paying for this Restriction, respectively, effective on the date this Restriction is executed and delivered, based upon their respective determinations as to the value of such grant and the consideration paid therefore.
8. Subsequent Transfer.
(a) The Grantor agrees to incorporate by reference the terms of this Conservation Restriction in any deed or other legal instrument by which it divests itself or any interest in all or a portion of the Premises.
(b) The Grantor agrees to provide a Right of First Offer by notice to the Commonwealth of Massachusetts, in the event that the Grantor chooses to divest itself of any permanent interest in all or a portion of the Premises. The foregoing shall not be deemed to include any transfer, lease, license or other arrangement to any other organization for the purpose of carrying out the educational or charitable purposes of the Grantor, its successors and assigns. If the Grantor has received a bona fide offer from another party for such interest (an "Offer") the Right of First Offer shall be at the amount specified in such Offer. If the Grantor has not received an Offer, the Right of First Offer shall be at the fair market value as determined by appraisal as set forth below. Such appraisal may be performed by a single duly qualified appraiser mutually agreed upon by the Grantor and the Grantee, or if they cannot agree within thirty (30) days of the receipt of the Right of First Offer notice to the Commonwealth, then each party shall appoint a qualified appraiser within the following thirty (30) days. If the two appraisers appointed by the parties cannot agree on the fair market value of the permanent interest in the Premises proposed to be divested within sixty (60) days of the date of the appointment of the last of them, then such appraisers shall jointly appoint a third appraiser, who shall submit his appraisal within forty-five (45) days of his appointment. In such event, the fair market value for such interest shall be the average of the two appraised values which are closest to each other, and the third appraisal shall be disregarded. Following either (i) receipt of the Right of First Offer notice specifying the value for the interest set forth in an Offer, or (ii) the submission of the final appraised value by notice to the parties, as the case may be, the Commonwealth shall have a period of four (4) months from the date of receipt of such notice to accept the Right of First Offer at the value specified in the Offer or such final appraised value, as the case may be, by notice to the Grantor. If the Commonwealth fails to accept such Right of First Offer as provided above, then such Right and all rights under this Section 8 (b) shall expire and be of no further force or effect. If the Commonwealth does accept such Offer or Right of First Offer, as the case may be, the closing of such purchase shall occur at 10:00 a.m. on the first business day which is sixth (60) days after the receipt by the Grantor of the Commonwealth's notice of acceptance, at the Suffolk County Registry of Deeds or other location in Boston that has been agreed upon by the parties in writing.
(c) In the event that the Grantor conveys any interest in the Premises to a party other than the Commonwealth of Massachusetts, the Grantor shall give written notice to the Grantees of the transfer of any interest at least thirty (30) days prior to the date of such transfer. Failure of the Grantor to do so shall not impair the validity of this Conservation Restriction or limit its enforceability in any way.
(d) The Grantor hereby agrees with the Grantees that by execution and delivery of this restriction it has waived its right to build or develop additional structures on the Premises except as specifically reserved in Section 3 (Reserved Rights) that are now or hereafter allocated to, implied, reserved or inherent in the Premises, and the Grantor and Grantee agree that such rights are terminated and extinguished and may not be used on or transferred to any portion of the Premises as it now or hereafter may be bounded or described, or to any other Premises adjacent or otherwise, nor used for the purposes of calculating permissible lot yield of the Premises or any other premises (except to the extent reasonably required to permit the uses and activities reserved to the Grantor under the terms of this Restriction).
9. Assignment by the Grantee.
The benefits of this Conservation Restriction shall be deemed to be in gross and the Grantees and their successors and assigns shall have the right to assign their right, title and interest hereunder.
10. Binding Effect; Release; Recordation.
The burdens of this Conservation Restriction shall be deemed to run with the Premises, in perpetuity, shall be enforceable against the Grantor, the Grantor's successors in title to the Premises and assigns, and any person holding any interest therein, by either Grantee, its successors and assigns and its duly designated officers, employees or agents as holders of this Conservation Restriction. This Conservation Restriction shall be in addition to and not in lieu of any other restrictions or easements of record affecting the Premises. This Conservation Restriction may only be released, in whole or in part other than pursuant to Section 7, by a Grantee pursuant to the procedures established by chapter 184, section 32 of the General Laws, or any successor statute, rule or regulation and in accordance with Article 97 of the Amendments to the Massachusetts Constitution, and any other applicable law or regulation. Grantor and Grantees agree that Chapter 184, section 32 of the General laws and Article 97 do not apply to the sale, lease or transfer of the Grantor's retained interests, so long as said interests are conveyed subject to this Restriction. The Grantee is authorized to record or file any notices or instruments appropriate to assuring the perpetual enforceability of this Conservation Restriction; and the Grantor on behalf of itself and its successors and assigns agrees to execute, acknowledge and deliver any such instruments promptly upon request.
11. Costs and Taxes.
Grantor agrees to pay and discharge when and if due any and all real property taxes and any other betterment charges or assessments levied by applicable legal authority on the Premises.
12. Estoppel Certificate.
Upon request by the Grantor, the Grantee shall within thirty (30) days execute and deliver to the Grantor any document requested, including an estoppel certificate, which certifies the Grantors' compliance with any obligation of the Grantor contained in this Conservation Restriction, and which otherwise evidences the status of this Conservation Restriction.
13. Value of Uses; Severability; Counterparts.
A. The fact that any of the uses prohibited herein, or other uses not mentioned, may become greatly more economically valuable than permitted uses, or that neighboring properties may in the future be put entirely to such non-permitted uses, has been considered by Grantor in granting this Restriction. It is the intention of both Grantor and Grantees that any such changes will increase the benefit to the public of the continuation of this Restriction, and that any such change should not be deemed to be changed conditions permitting termination or amendment of this Restriction. The inability to carry on any or all of the above non-permitted uses, or the absence of wildlife species, shall not impair the validity of this Restriction or be considered grounds to terminate it.
B. If any provisions of this Restriction or the application thereof to any person or circumstance is found to be invalid, the remainder of the provisions of this Conservation Restriction, and the application or such provisions to persons or circumstances other than those as to which it is found to be invalid, shall not be affected thereby.
C. This Agreement may be executed in counterpart originals, each one of which shall be deemed an original for all purposes, and any one of which with the signature pages of the others affixed thereto, shall be deemed the entire original document for recording and for all other purposes.
14. Amendment.
If circumstances arise under which amendment to or modification of this Restriction would be appropriate, including, without limitation, as described in Section 4(b) above, Grantor and Grantee may by written agreement jointly amend this Restriction; provided that no amendment may be made that would be inconsistent with the purposes of this Restriction, affect its perpetual duration, or adversely affect any of the significant conservation values of the Premises. Any such amendment shall be recorded with the Suffolk County Registry or Deeds.
IN WITNESS WHEREOF, Thompson Island Education Center, Inc. and Thompson Island Outward Bound Education Center, Inc. have executed this instrument this 10 day of June 2002.
Thompson Island Education Center, Inc. (Seal)
By: George Armstrong, President
Thompson Island Outward Bound Education Center, Inc. (Seal)
By: George Armstrong, President
Commonwealth of Massachusetts Date: June 10, 2002 County of Suffolk
Then personally appeared the above named George Armstrong, President of Thompson Island Education Center, Inc., duly authorized, and acknowledged the foregoing instrument to be the free act and deed of Thompson Island Education Center, Inc., before me.
John A. Kessler, JR
NOTARY PUBLIC, John A. Kessler, JR
My commission expires: 1/23/09
Commonwealth of Massachusetts Date: June 10, 2002 County of Suffolk
Then personally appeared the above named George Armstrong, President of Thompson Island Outward Bound Education Center, Inc., duly authorized, and acknowledged the foregoing instrument to be the free act and deed of Thompson Island Outward Bound Education Center, Inc., before me.
John A. Kessler, JR
NOTARY PUBLIC, John A. Kessler, JR
My commission expires: 1/23/09
Exhibit A
Legal description of the Premises
All that land lying and being situated in Boston Harbor, City of Boston, Suffolk County, Commonwealth of Massachusetts known as Thompson Island as shown on a plan entitled "Plan of Land Thompson Island Boston Harbor, East Boston, MA 02128" prepared for MA Department of Environmental Management and the National Park Service, dated February 19, 2002 and prepared by Coler & Colantonio, Inc., referred to herein as the Plan, being the same island conveyed by George W. Beale to John Tappan, John D. Williams and Samuel T. Armstrong in a deed dated November 16, 1832 and recorded in Book 98, Page 246 in the Norfolk County Registry of Deeds with a confirming deed recorded in the Suffolk Registry of Deeds in Book 391, Page 275 on June 4, 1835.
Legal Description of the Building Envelope within the Premises
The Building Envelope shown on the Plan is bounded and described as follows:
Beginning at a point on the western side of Thompson Island, said point being five hundred feet more or less, as scaled from the Plan, southwesterly of the pier at the Mean Low Water line;
Thence northeasterly following said Mean Low Water line one thousand six hundred eighty-five (1,685} feet more or less to a point;
Thence S 52° 51' 52" E two hundred seventy-five (275) feet more or less to a stone bound to be set, said bound also being the northeast comer of the variable width buffer strip located on the western side of the island and shown on the Plan;
Thence continuing S 52° 51' 52" E three hundred fifty-nine and twenty-seven hundredths (359.27) feet to a stone bound to be set;
Thence N 33° 34' 22" E one hundred seventy-seven and twenty-one hundredths (177.21) feet to a point;
Thence by a curve to the left with a radius of eighty-four and no hundredths (84.00) feet and a length of one hundred twenty-two and no hundredths (122.00) feet to a point;
Thence by a curve to the right with a radius of twenty-two and no hundredths (22.00) feet and a length of fifty and seven hundredths (50.07) feet to a point;
Thence N 81° 04' 12" E for eighty-one and eighteen hundredths (81.18) feet to a point;
Thence by a curve to the left with a radius of one hundred sixteen and ninety-three hundredths (116.93) feet and a length of seventy and ninety-four hundredths (70.94) feet to a point;
Thence by a curve to the right with a radius or one hundred fifty and no hundredths (150.00) feet and a length of thirty-four and sixty-six hundredths (34.66) feet to a stone bound to be set;
Thence S 13° 54' 11" E two hundred eighty-seven and sixty-seven hundredths (287.67) feet to a stone bound to be set;
Thence S 24° 22' 58" E two hundred twenty-one and seventy eight hundredths (221.78) feet to a stone bound to be set; said bound also being the northwest corner of fifty foot buffer strip on the eastern side of the island as shown on the Plan;
Continuing S 24° 22' 58" E one hundred eighty-four (184) feet more or less to the Mean Low Waterline on the eastern side of the island;
Thence following said Mean Low Waterline southwesterly one thousand two hundred sixty (1260) feet more or less to a point;
Thence N 69" 31' 10" W two hundred sixty-one (261) feet more of less to a stone bound to be set; said bound also being the southwest corner of the fifty foot buffer strip on the eastern side of the island as shown on the Plan;
Thence N 88° 25' 25" W four hundred seventy-four and sixty-four hundredths (474.64) feet to a stone bound to be set;
Thence N 58" 00' 47'' W four hundred thirty and sixty-six hundredths (430.66) feet to a stone bound to be set; said bound also being the southeast corner of the variable width buffer strip on the western side of the island as shown on the Plan;
Continuing N 58° 00' 47" W two hundred twenty (220) feet more or less to a point at the Mean Low Water line; said point being the point of beginning.
As shown on the Plan, the Building Envelope contains 45.09 acres more or less, calculated to Mean Low Water.
As shown on the Plan, the total Island contains 240.51 acres, more or less, calculated to Mean Low Water.
The above described island is designated as Tract 101-01 of the Boston Harbor Islands National Recreation Area.
Exhibit B
Thompson Island Access Plan
1. This 10 day of June, 2002, the Commonwealth of Massachusetts acting through the Department of Environmental Management (DEM), the United States of America acting through the National Park Service (NPS), and Thompson Island Education Center, Inc. (TIEC) hereby enter into this cooperative management agreement and Access Plan to manage general public access to Thompson Island within the Park Area.
2. This Access Plan is incorporated into and made a part of the Conservation Restriction on Thompson Island conveyed by TIEC to DEM and NPS dated June 10, 2002 (herein the "Restriction") (All defined terms used herein shall have the meanings given to them in the Restriction.) The Restriction establishes key parameters and principles with respect to Escorted and Unescorted Public Access which are expected to remain relatively constant over a period of years; this Access Plan describes the current detailed agreement and procedures for the administration of Escorted and Unescorted Public Access in close coordination with the Grantor's ongoing educational programs, which current details contained in this Access Plan shall remain in effect until modified by an amendment of this Access Plan.
3. This Access Plan may be refined and amended from time to time by mutual agreement of the Grantor and Grantees in writing, consistent with the applicable provisions of the Restriction, including, without limitation, the Education/Access Balance. It shall be reviewed annually or as otherwise agreed by the parties, with ongoing input from and coordination with the Operations and Education Committees of the Partnership.
4. It is recognized that patterns of visitation to the individual islands and the Park Area as a whole are evolving. The Grantor and Grantee have agreed to restrict Unescorted Public Access to both weekend days throughout the year and Summer Holidays (or portion of a weekend day or Summer Holiday served by the UPA Ferry schedule) except on up to three (3) days in any twelve month period to facilitate the programming of large events by the Grantor in accordance with paragraph 9 below in order to minimize conflicts with ongoing educational programming. If sufficient demand does not exist during the off-season winter months to justify the expense of administration and supervision, after reasonable efforts by the Grantor, the Grantees and the Partnership to make known the availability of the Island for seasonal activities such as cross-country skiing through distribution of materials as described in paragraph 16 below, the availability of Unescorted Public Access on winter weekends may be reduced by mutual written agreement of the Grantor and Grantee.
5. The Premises may remain closed to Unescorted Public Access for a reasonable period of time after the execution of the Restriction, not to exceed six months, in order to allow for appropriate planning, staffing, or construction of any needed improvements.
6. (a) The Thompson Administrator shall manage the scheduling of the Grantor's educational programs and both Escorted and Unescorted Public Access so as to achieve the Education/Access Balance as defined in Section 4 of the Restriction, and subject to the requirements for Unescorted Public Access set forth in Section 4 of the Restriction and the current Access Plan.
(b) For each weekend day and Summer Holiday, depending upon the number and nature of the educational programs which are scheduled, the Thompson Administrator shall determine, in his/her reasonable judgment, the number of people, who can be permitted Unescorted Public Access without materially interfering with the educational programs or requiring additional supervision. In determining this number, the Thompson Administrator shall take into account the reasonable level of staffing required to protect the resources, and the details of the educational values of each program scheduled to be conducted, distinguishing between those programs which place a premium on solitude or preserving the uninterrupted atmosphere of the natural environment, and those in which such values are less important.
(c) The Activity Areas will be off limits to Unescorted Public Access at all times for safety reasons. Unescorted Public Access is not permitted to the Sensitive Areas, except access to the Bird Blind via the trial shown on the Plan across the Building Envelope, which is permitted, and kayak access to the Saltmarsh originating outside the Saltmarsh around the time of high tide. Except in the case of unusual hazards, the shoreline and beaches shall always be open to Unescorted Public Access, Escorted Public Access and to Beach Access. Escorted Public Access to the Conservation Area, including the Activity Areas except Activity Areas which are in use, and the Sensitive Areas, will be permitted on any day of the week, with advance approval, consistent with scheduled educational programs and Unescorted Public Access in the reasonable discretion of the Thompson Administrator. The Grantor reserves the right to post and close to all Escorted and Unescorted Public Access to specific areas when conditions in such areas could constitute a public safety hazard, or such areas that require protection from foot traffic from all visitors and users of the Island, such as archeological sites or areas of compacted soil, or to close the entire Island to public access if necessary for safety reasons.
7. The Grantor may designate staff to register UPA visitors upon entering the Premises, and provide a brief orientation on the Island's education programs, history of ownership, rules, history, and points of interest and a description of the portions of the Conservation Area open to UPA on such date and the conditions of such use. Boaters engaging in Beach Access shall not be required to register or attend the orientation unless they hold a UPA Reservation, but they shall not be permitted to access the Conservation Area other than the shoreline beaches unless they hold a UPA Reservation. No Unescorted Public Access shall be allowed over the so-called spit from Squantum at any time. The Grantor may only charge fees to cover transportation costs, and for elective programs above and beyond Unescorted Public Access.
8. Subject to the exceptions set forth above, UPA Reservations up to fifty (50) persons per weekend day may be made substantially in advance, but UPA Reservations in excess of fifty (50) shall be permitted only within ten (10) days in advance, based on the plans for educational programs.
9. The Grantor reserves the right to prohibit Unescorted Public Access to the entire Conservation Area on days when UPA would otherwise be permitted, to facilitate programming for large events which shall not exceed a total of three one-day events in any twelve-month period. The Grantor shall notify the Grantee no less than ten (10) days prior to such events. The Grantor agrees to make reasonable efforts to accommodate the scheduling of up to three (3) major Park-wide events in any twelve month period, subject to arrangements for adequate staffing.
10. (a) The Grantor currently provides reliable, year-round, and regular means of ferry service to the Island, including a scheduled boat on Saturdays in the summer from the Federal Courthouse at the Fan Pier. The Grantor hereby agrees to supplement this Saturday service to provide UPA Ferry service by adding service on Sundays during the summer and on Summer Holidays from such Fan Pier dock or a similarly accessible dock in the same general vicinity, subject to required legal rights to use any such facility. The Grantor agrees to include this UPA Ferry service in the Park Area's water transportation schedule by publishing such UPA Ferry schedule and making it available for inclusion in promotional materials concerning the Park Area to be prepared by the Partnership, the Grantor and the Grantees. Until any other arrangement is agreed to in writing between the Grantor and the Grantees in accordance with the following provisions or this paragraph 10, the Thompson ferry shall constitute the sole approved UPA Ferry, which will permit Thompson to ensure that only members of the public holding UPA Reservations or Group Reservations may embark upon the UPA Ferry. The Grantor (or any contractor as the agent of the Grantor) may charge reasonable fees for such service consistent with the Park Area's transportation fees, recognizing that the Grantor's ferry is not subsidized by public funds and that other ferry services may be so subsidized.
(b) In the event that Thompson's UPA Ferry service is inadequate to accommodate the number of persons holding UPA Reservations, the Grantor and the Grantee agree to work in good faith towards permitting one or more other ferries serving the Harbor Islands to be qualified as UPA Ferries, subject to the development of a mutually agreeable system that ensures that only holders of UPA Reservations on Thompson Island will be permitted to (i) board any ferry bound for Thompson Island or (ii) disembark at Thompson Island, and subject to the condition of the pier to safely accommodate any other ferry with differing characteristics and capabilities.
(c) The Thompson ferry currently makes regular runs to the EDIC berth adjacent to the Black Falcon Terminal to pick up and discharge staff and participants in educational programs. Although that location is not intended as a primary point or embarkation for Unescorted Public Access, the Grantor agrees, subject to the availability of space after staff and program participants for both the trip to the Island and the return trip, to pick up and discharge persons holding UPA Reservations at the EDIC berth adjacent to the Black Falcon Terminal, with the understanding that such persons may not be returned to the point of embarkation.
(d) In the event that members of the public identify themselves to the captain of any Thompson ferry authorized to transport persons holding UPA Reservations, requesting transportation to the Island to engage in Unescorted Public Access but without a UPA Reservation made in advance, then provided that (i) such ferry captain can reasonably verify that providing access to such persons will not cause the number or persons permitted UPA during that time period to be exceeded, (ii) such persons agree to be bound by all other conditions applicable to Unescorted Public Access, and (iii) space is available on the applicable ferry and any required return ferry, then in the reasonable discretion of the ferry captain, such persons may be permitted access for Unescorted Public Access on all the same conditions as would apply with a UPA Reservation. The Grantor shall maintain the Premises’ existing pier in a safe and serviceable condition consistent with the needs and economic capabilities of its educational and charitable mission, and which will provide for general public access by a UPA Ferry as provided in paragraph 10 above, but the Grantor shall not be obligated to expend its own funds to modify the existing pier to accommodate any other ferry with differing characteristics and capabilities.
12. The Grantor shall provide a minimum of three (3) publicly available moorings for private boats and charge a reasonable fee, or provide the service as a Park Area concession. Any additional publicly available moorings shall be determined by mutual agreement of the Grantor and Grantee.
13. The Grantor has the right to provide appropriate management of public access and use, and the Thompson staff shall have the right to terminate the UPA Reservation and status of any person who does not conform to established rules and practices for Unescorted Public Access, but the Grantor shall have no obligation to provide supervision beyond giving the orientation presentation described in the definition of Unescorted Public Access. The Grantees shall be under no obligation to provide such management or supervision. The Grantor agrees to cooperate with the Grantees in the event that the Grantees wish to provide staffing in connection with the management and supervision of Unescorted Public Access.
14. The Grantor shall provide toilet facilities accessible to UPA visitors within the Conservation Area substantially as presently provided at both the reception area and at the south end of the Island.
15. The Grantor shall install appropriate signage, including an orientation kiosk or other facility and interpretive waysides, consistent with the Park Area standards and in a welcoming spirit for visitors.
16. The Grantor will cooperate with the Grantees and the Partnership in public information and marketing to increase public visitation and utilization or education programs. The Grantor shall provide to the Grantees copies of any materials intended for public dissemination pertaining to the public’s use of the Conservation Area. The Park Area logo and other similar and reasonable marketing protocols adopted by the Park Area or the Partnership of which notice is given to the Grantor will be incorporated with reasonable promptness into all materials primarily related to Unescorted and Escorted Public Access and Thompson’s role in the Park Area, taking into account the reasonable utilization of existing materials.
17. As the Grantor maintains and expands its existing educational programming, the Grantor and the Grantees shall attempt to include other Boston Harbor islands in the Grantor’s activities and programs, as appropriate, in order to reinforce the connections between the islands of the Park Area.
18. In addition to the periodic review under paragraph 3 above, this Access Plan shall also be reviewed and revised, as appropriate, if the Grantor ceases to operate the Premises primarily for educational programming, or if the Grantor conveys the Premises to a party other than one or both of the Grantees, or in the event of other material changes in circumstances. In the event that the use of the Premises becomes primarily one or more of the Permitted Uses that does not include education of members of the as a primary part of its purposes and mission such that the Conservation Area is no longer being used for educational programming. Unescorted Public Access shall be permitted to the entire Conservation Area on weekends, except the Sensitive Areas because of their environmental sensitivity and potential hazards, subject to reasonable limitations necessary to protect and conserve the natural beauty and ecological resources of the Conservation Area, as reasonably determined by the Thompson Administrator and the Park Project Manager in consultation with the DEM Manager. In such event, Unescorted Public Access may be permitted to any portion of the Conservation Area except the Sensitive Areas on weekdays subject to the provision of reasonable supervisory staffing by the Grantees. In such event, Unescorted Public Access may be permitted to any portion of the Conservation Area except the Sensitive Areas on weekdays subject to the provision of reasonable supervisory staffing by one or more of the Grantees or, if the Grantor, its successors or assigns so elects and Grantees agree, by the Grantor, it successors or assigns.
Exhibit C - 1 of 2
The Secretary of the Interior’s Standards for the Treatment of Historic Properties
Kay D. Weeks and Anne E Grimmer
US. Department of the Interior
National Park Service
Cultural Resource Stewardship and Partnerships
Heritage Preservation Services
Washington. D.C.
1995
Page 62, Standards for Rehabilitation
1. A property will be used as it was historically or be given a new use that requires minimal change to its distinctive materials, features, spaces, and spatial relationships.
2. The historic character of a property will be retained and preserved. The removal of distinctive materials or alteration of features, spaces and spatial relationships that characterize a property will be avoided.
3. Each property will be recognized as a physical record of its time, place, and use. Changes that create a false sense of historical development, such as adding conjectural features or elements from other historic properties, will not be undertaken.
4. Changes to a property that has acquired historic significance in its own right will be retained and preserved.
5. Distinctive materials, features and construction techniques or examples of craftsmanship that characterize a property will be preserved.
6. Deteriorated historic features will be repaired rather than replaced. Where the severity of deterioration requires replacement of a distinctive feature, the new feature will match the old in design, color, texture, and, where possible, materials. Replacement of missing features will be substantiated by documentary and physical evidence.
7. Chemical of physical treatments, if appropriate, will be undertaken using the gentlest means possible. Treatments that cause damage to historic materials will not be used.
8. Archeological resources will be protected and preserved in place. If such resources must be disturbed, mitigation measures will be undertaken.
9. New Additions, exterior alterations, or related new construction will not destroy historic materials, features and spatial relationships that characterize the property. The new work shall be differentiated from the old and will be compatible with the historic materials, features, size, scale and proportion and massing to protect the integrity of the property and it environment.
10. New additions and adjacent or related new construction will be undertaken in such a manner that, if removed in the future, the essential form and integrity of the historic property and it environment would be unimpaired.
Exhibit C - 2 of 2
The Secretary of the Interior’s Standards for the Treatment of Historic Properties
Kay D. Weeks and Anne E Grimmer
US. Department of the Interior
National Park Service
Cultural Resource Stewardship and Partnerships
Heritage Preservation Services
Washington. D.C.
1995
Page 166, Standards for Rehabilitation
1. Reconstruction will be used to depict vanished or non-surviving portions of a property when documentary and physical evidence is available to permit accurate reconstruction with minimal conjecture and such reconstruction is essential to the public understanding of the property.
2. Reconstruction of a landscape, building, structure, or object in its historic location will be preceded by a thorough archeological investigation to identify and evaluate those features and artifacts, which are essential to an accurate reconstruction. If such resources must be disturbed, mitigation measures will be undertaken.
3. Reconstruction will include measures to preserve any remaining historic materials, features and spatial relationships.
4. Reconstruction will be based on the accurate duplication of historic features and elements substantiated by documentary or physical evidence rather than on conjectural designs or the availability of different features from other historic properties. A reconstructed property will re- create the appearance of the non-surviving historic property in materials, design, color and texture.
5. A reconstruction will be clearly identified as a contemporary re-creation.
6. Designs that were never executed historically will not be constructed.
Exhibit D
“Height of building” as defined In Article 2, Section 1, Definition #23 of The Boston Zoning Code and Enabling Act, as amended through December 31, 1997.
Height of Building, the vertical distance from grade to the top of the highest point of the roof beams of a flat roof, or the mean level of the highest gable or of the slope of a hip roof, excluding roof structures and penthouses normally built above the roof and not used or designed to be used for human occupancy, provided that the total area of such roof structures and penthouses does not exceed 33-1/3 percent of the roof area; except that, for any proposed Project that (a) is subject to Article 31 and (b) is within a downtown district established under Section 3-1C, “height of building” means the vertical distance from grade to the top of the structure of the last occupied floor. A mansard roof shall be considered a flat roof.
