The enabling legislation that created the
'Pittsfield Economic Development Authority'
---------------
Commonwealth of Massachusetts
[St. 1998, c. 486,] SECTION 2. Chapter 295 of the acts of 1996 is hereby amended by striking out sections 1 to 20, inclusive, as amended by section 268 of chapter 194 of the acts of 1998, and inserting in place thereof the following 22 sections:-
Section 1. The city of Pittsfield, by majority vote of its city council, may, subject to the provisions of this act, create a body corporate to be known as the Pittsfield Economic Development Authority, hereinafter referred to as the authority.
Section 2. The purposes of the authority shall be to acquire properties contaminated by oil or hazardous material, conduct response actions thereon and construct, develop, maintain, lease, convey or otherwise transfer such property for the beneficial reuse or development of such property to promote economic development on behalf of the city of Pittsfield. Said board, as defined herein, acting for and on behalf of said authority, may take by eminent domain under chapter 79 of the General Laws or acquire by purchase or otherwise any disposal site in the city of Pittsfield, or a portion thereof, as defined by section 2 of chapter 21E of the General Laws, hereinafter referred to as chapter 21E and associated lands, properties, water rights, and rights of ways may c response actions pursuant to the requirements of said chapter 21E and regulations promulgated pursuant thereto; may construct, maintain or operate and lease such industrial or commercialfacilities acquired by the authority; may sell, by negotiation with the city of Pittsfield or a private at public auction, any property, including land acquired by the authority pursuant to this act and which in the authority's opinion is no longer needed in the performance of the powers and duties conferred and imposed on it by this act; and may, from time to time, lease any property which in the authority's opinion is not needed for the purposes of this act; and may do things proper or necessary for the purposes of this act; provided, however, that the authority shall not take in fee any land of a railroad corporation and shall not enter upon or construct, maintain or operate any industrial or commercial facility within the location as it may agree up such corporation or, in the case of failure to agree, as approved by the department of telecommunications and energy.
Section 3. The authority may enter into agreements to indemnify and hold harmless future owners or operators of properties acquired by the authority pursuant to this act from and against liability pursuant to sections 4, 4A and 5 of chapter 21E of the General Laws with respect to any releases or threats of release of oil or hazardous material that first began to occur before such owners or operators acquire ownership or possession of the property; provided, however, that such indemnification shall not apply to any violation of or change to a restriction in use imposed on the property as part of a response action conducted by the authority. Notwithstanding any provision of said chapter 21E to the contrary, such owner or operator who acquires ownership or possession of property from the authority shall not be deemed an owner or operator for purposes of said chapter 21E with respect to any release or threat of release of oil or hazardous material that first began to occur at or from a property before the time that such owner or operator acquired ownership or possession; provided, however, that: (1) such owner or operator is a bona fide new owner or operator and is not affiliated with any other person potentially liable for response costs or damages to natural resources caused by such release or threat of release through any direct or indirect familial relationship or any contractual, corporate or financial relationship other than that created by the instruments by which title to the property is conveyed or financed; (2) such owner or operator provides reasonable access to the property to employees, agents and contractors of the department of environmental protection to conduct response actions and to other persons intending to conduct response actions; and (3) such owner or operator does not violate or fail to comply with any restriction on future use of the site imposed pursuant to section 6 of said chapter 21E and regulations promulgated pursuant thereto. When such owner or operator is not an owner or operator pursuant to this definition, any person who owned or operated the property immediately prior to the authority's acquisition of ownership or possession shall be deemed the owner or operator pursuant to said chapter 21E.
Notwithstanding any other provision of this definition, the authority's tenants, subtenants or other person using or acquiring a property from the owner may be deemed an owner or operator with respect to any release or threat of release that first begins to occur at or from a property after the time that the authority takes ownership or possession of it for any purpose authorized by this act.
Section 3A. (a) Notwithstanding any other provisions of this act, the authority may, in its reasonable discretion, provide limited indemnification to any industrial corporation that has been the owner of any property located in the city of Pittsfield and which property has been conveyed to said authority by said corporation.
Any decision by said authority to provide such indemnity, and the terms of any such indemnification agreement, shall be limited by the provisions of this section. Pursuant to this subsection, with respect to any claim that arises from or is associated with the past ownership, use or occupancy of said property by said corporation, said authority may indemnify said corporation from and against (1) liability pursuant to chapter 21E of the General Laws, the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, 42 U.S.C. sections 9601 et seq., the Resource Conservation and Recovery Act, 42 U.S.C. sections 6901 et seq., the Toxic Substances Control Act of 1976, 15 U.S.C. sections 2601 et seq., the Federal Water Pollution Control Act, 33 U.S.C. sections 1251 et seq., and the Clean Air Act, 42 U.S.C. sections 7401 et seq.; (2) liability for property damage or personal injury under the common law; and (3) any other claims for recovery of environmental remediation, or response costs; provided, however, that said authority shall not indemnify said corporation from and against any penalties that are assessed by any agency of state or federal government or by any regulatory authority; and provided, further, that said authority shall not indemnify said corporation from and against liability or costs that said corporation may incur in connection with any hazardous or other material at any property other than the property that said authority has acquired.
(b) Nothing in this section shall be interpreted as authorizing any immunity from suit or any defense from liability in connection with any claim raised by any third party against said corporation, limiting or altering the provisions of subsection (f) of section 5 of chapter 21E of the General Laws, or limiting the right of any party to bring any claim against said corporation. Nothing in this section shall be interpreted as giving rise to any liability or indemnification obligation on behalf of the commonwealth or any agency or political subdivision of the commonwealth, including, without limitation, the city of Pittsfield, but excluding said authority to the extent that said authority enters into said indemnification agreement.
(c) Said authority may, in its reasonable discretion, indemnify said corporation from and against claims for property damage, personal injury, or reimbursement for environmental remediation or response costs, where such damages, injuries or costs are caused by an act or failure to act of a subsequent owner, operator or tenant of such property that results in a release or threat of release of oil or hazardous material that is first discovered subsequent to the transfer of property to said authority; provided, however, that said authority shall (1) obtain insurance coverage in such amounts that it deems appropriate and commercially available to carry out or otherwise support any indemnification obligations it assumes, and (2) determine that the public interest in the economic development of the city of Pittsfield will best be served by entering into such indemnification agreement.
(d) Before indemnifying or agreeing to indemnify said corporation as set forth in subsection (a), said authority shall first determine: (1) that said corporation has remediated said property, or has entered into enforceable agreements with state and federal agencies having regulatory authority over remediation plans and activities to remediate said property so as to presently comply, or be legally obligated to comply within a reasonable time, with the provisions of federal and state laws referenced in subsection (a); (2) that the authority shall obtain insurance coverage in amounts adequate to carry out or otherwise support any indemnification obligations it assumes, at a cost which, in its reasonable opinion, will not unduly burden or interfere with the operations of the authority; and (3) that the public interest in the economic development of the city of Pittsfield will best be served by entering into such indemnification agreement.
(e) Pursuant to this section, said authority shall not enter into any such indemnification agreement that will have the effect of indemnifying said corporation from and against liability for acts or failures to act of which said corporation was aware or should have been aware, in the exercise of due diligence, at the time of such indemnification agreement and which said corporation was under any statutory, regulatory or contractual obligation to disclose to said authority or to a state or federal agency or, regulatory authority with jurisdiction over environmental matters, but which it failed to disclose prior to entering into such indemnification agreement. Any provision of any such indemnification agreement between said authority and said industrial corporation which is contrary to the requirements of this subsection shall be void and shall be severed from such indemnification agreement as a violation of the public policy of the commonwealth; provided, however, that the remainder of such indemnification agreement, to the extent that it is not contrary with this subsection, shall remain in full force and effect.
Section 4. (a) The authority may enter into agreements with its response action contractors to indemnify and hold harmless its response action contractor against any liability for negligence, including legal fees and costs, if any, in an amount not to exceed a figure established by the indemnification agreement pursuant to the terms of this section. In no event shall the amount of indemnification to be provided under an indemnification agreement exceed $2,000,000 for a single occurrence involving the release or threat of release of oil or hazardous material. No indemnification shall be provided pursuant to an indemnification agreement under this section if the response action contractor fails to meet the standard of care which is the degree of care that a reasonable and diligent hazardous waste site cleanup professional licensed pursuant to sections 19 and 19J, inclusive, of chapter 21A shall exercise when rendering a waste site cleanup activity opinion pursuant to said sections 19 and 19J or if the action or omission which gives rise to the claim is not within the scope of the response action contract.
(b) The indemnification provided under this section shall apply only to response action contractor liability arising out of response activity conducted by the response action contractor in response to a release or threat of release of oil or hazardous material.
Section 5. The authority shall be authorized to take or arrange for necessary response actions as determined by reference to the Massachusetts Contingency Plan, as defined in section 3 of chapter 21E of the General Laws, or for response actions as determined in reference to the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, 42 U.S.C. 9601 et seq., the Resource Conservation and Recovery Act 42 U.S.C. 6901 et seq., the Toxic Substances Control Act of 1976, 15 U.S.C. 2601 et seq., amended by 15 U.S.C. 2642 et seq., the Federal Water Pollution Control Act, 33 U.S.C. 1251 et seq., and the Clean Air Act, 42 U.S.C. 7401 et seq. The authority shall be entitled to reimbursement from any other person liable for such release or threat of release for the reasonable costs of such response actions, including all litigation costs and attorneys' fees. All claims for contribution, reimbursement or equitable share by the authority pursuant to this section and chapter 21E of the General Laws shall be brought in accordance with the procedures set forth in section 11A of said chapter 21E.
The authority may enter into agreements with prior owners or operators of a site or vessel or persons who may have otherwise caused or may be legally responsible for releases or threats of releases of oil or hazardous material, to conduct or reimburse the authority for the costs of response actions. In conducting any response action pursuant to the requirements of said chapter 21E and the regulations promulgated thereto, the authority shall not be exempt from any compliance or permit fees.
Section 6. In the event that a response action or portion of a response action conducted by the authority includes a restriction on future use of the property pursuant to section 6 of chapter 21E and the regulations promulgated thereto, the authority shall have no liability or responsibility for any future or subsequent violation of such restriction or for any necessary and appropriate response action on account of use of the property by a future owner or operator contrary to the requirements of such restriction.
Section 7. Except as expressly provided by this section, the authority shall not be deemed an "owner" or "operator" under the provisions of clauses (2) and (5) of paragraph (a) of section 5 of chapter 21E of the General Laws and shall be excluded from the definition of "owner" or "operator" with respect to releases and threats of releases that first begin to occur before the authority acquires ownership or possession of a property; provided, however, that upon acquiring ownership or possession of a property, said authority shall:
(1) provide notice to the department of environmental protection, immediately upon obtaining knowledge of a release or threat of release of oil or hazardous material for which notification is required pursuant to, and in compliance with, section 7 of said chapter 21E or regulations promulgated pursuant thereto;
(2) provide reasonable access to the property to employees, agents and contractors of said department to conduct response actions, if necessary, and to other persons intending to conduct necessary response actions;
(3) take or arrange for any and all response actions necessary and appropriate regarding releases or threats of releases under said chapter 21E and any regulations promulgated pursuant thereto.
In the event that the department incurs response action costs in connection with any site acquired by the authority, the authority shall reimburse the department for such reasonable response actions costs.
Section 8. There is hereby established the Pittsfield Economic Development Board, hereinafter called the board. The authority shall be under the management and control of said board.
Section 9. The board may enter upon any land for the purposes of making surveys, environmental site assessments, test pits or borings and, for the carrying out of said purposes, may, by purchase or otherwise, temporarily occupy any lands or take property by eminent domain under chapter 79 of the General Laws.
Section 10. The authority, by vote of the board, may issue, from time to time, general obligation serial bonds or notes to pay for the costs of capital outlays in connection with assessment, containment and removal activities at properties acquired by the authority and in connection with the construction and operation of industrial and commercial facilities and such other works as may be required, including land damages and costs of demolition of existing structures on lands that may be required.
Such bonds shall be issued in such amounts as the authority, acting by and through the board, may determine and the authority may refund any such bonds and notes. Such serial bonds and notes may be callable with or without premium and shall contain such terms and conditions, bear such rates of issue, be sold in such a manner, at private or public sale, and mature in such times and in such amounts as the board shall determine, provided, however, that each issue of such bonds and notes shall be payable in annual installments, the first of which shall be payable not later than two years after its date and the last of which shall be payable not more than 30 years from such date.
If the board votes to issue serial bonds or notes, said board may authorize the issuance in the name of the authority of general obligation temporary notes for a period of not more than two years in anticipation of the money to be received from the sale of such serial bonds or notes. The time within which such temporary notes are issued shall not be extended by reason of the making of such temporary loans beyond the time fixed in the order authorizing such temporary bonds or notes.
For the purpose of paying the expenses of operations including, without limitation, any principal or interest due or about to become due on any serial bond or note issued by the authority in which funds are not available, the board in the name of the authority may issue, from time to time, general obligation temporary notes of the authority in anticipation of any revenues, gifts, grants or receipts from any public or private source.
General obligation temporary notes in anticipation of any revenues, gifts, grants or receipts shall be payable not more than one year from their date and shall not exceed in principal amount the amount of the reasonably known and measurable revenues, gifts, grants or receipts in anticipation of which they are issued.
General obligation temporary notes issued under this section for a shorter period than the maximum permitted may be renewed by the issuance of other general obligation temporary notes maturing within the required period; provided, however, that the period from the date of issue of the original temporary note to the date of maturity of the renewal note shall not exceed the maximum period for which the original note may have been issued. Such temporary notes or renewal notes may be sold at discount or with interest payable at or before maturity.
Notes or serial bonds authorized by this section shall be signed by the treasurer of the board and countersigned by the chairman of the board and serial bonds and notes shall have the authority's seal affixed. Section 16B of chapter 44 of the General Laws shall be applicable to such serial bonds and notes.
Section 11. The board shall annually determine the amount required for the payment of principal and interest on such serial bonds and notes issued or to be renewed by the authority which shall be due during the ensuing calendar year and shall also determine such other amounts as may be necessary to maintain and operate the authority during such year, including capital outlay items the cost of which is not to be funded and for all other matters for which the authority is required to raise money, and, after determining such payments and amounts, shall promptly prepare a report which shall be provided to the mayor of the city of Pittsfield.
Section 12. To meet the costs of construction, maintenance and operation of the facilities authorized by this act, the authority may file an application for, or accept and use, any federal or state funds or grants or any federal or state assistance or both provided therefor under any federal or state law or funds from any other sources.
The authority may also apply for and receive contributions from public or private funding sources for the establishment of a Capitalized Mitigation Fund to be used for the purpose of financing project costs and administered as a revolving loan fund to the city of Pittsfield. Such contributions shall be reported in a yearly report of private contributions to be prepared by the board which shall, not later than February 1 of each year, submit a copy to the house and senate committees on ways and means, the state auditor and the chief executive and city council members of the city of Pittsfield. The authority may expend funds from said Capitalized Mitigation Fund on any project only after a majority vote of the board. The city of Pittsfield, receiving funding from said fund, shall prepare a complete financial report detailing cost analysis and environmental impact.
Nothing in this section shall be construed to limit the ability of the authority to accept gifts, grants or contributions from any public, private or charitable source.
Section 13. No lands, rights of ways or other easements, property, structures or rights acquired by the authority, as herein provided and located in the city of Pittsfield shall be assessed or taxed by the city of Pittsfield so long as such property is owned by the authority, response actions are on-going and the property and improvements thereon are not in beneficial reuse by a third party as so determined in the judgement of the board. Following the completion of the response actions or transfer or upon beneficial reuse of the property, it shall be assessed or taxed by the city of Pittsfield.
Section 14. The board shall consist of seven members appointed by the mayor of the city of Pittsfield. Official action shall require the affirmative vote of at least said majority of the board.
In appointing such members, the mayor shall choose at least one member who is experienced with or knowledgeable about the financing or issuance of bonds, such member to be appointed for a term of two years; one member who is experienced with or knowledgeable about environmental matters, including contamination of land, such member to be appointed for a term of two years; one member who is experienced with or knowledgeable about economic development and planning, such member to be appointed for a term of three years; one member who lives in or will represent the interest of the neighborhoods which will be most directly affected by the activities of the authority, such member to be appointed for a term of one year and three members who shall be appointed for a term of one year each. The mayor may serve as a member of the board.
At the expiration of the term of any member or upon the resignation or disqualification of any member, the mayor shall appoint a new member for an equivalent term as the member whose seat the new member is replacing. Each member whose term has expired shall serve until the qualification of a successor. A board member may be reappointed.
Section 15. The board shall appoint and determine the compensation of an authority director who shall be the chief executive officer of the authority and shall administer the affairs and direct the work of the authority as approved by the board. Such director may, in the discretion of the board, also hold elective office, notwithstanding any provisions of chapter 268A or any other of the General Laws to the contrary. The board shall set forth the powers and duties of the director in its by-laws.
The director may, upon approval of the board or as otherwise provided in the authority's by-laws, enter into agreements for professional construction services to be provided to the authority by private contractors. The director shall be familiar with economic development in Berkshire county and shall possess such other qualifications as are determined by the board.
Section 16. The authority shall have a seal consisting of a circular die bearing the words "Commonwealth of Massachusetts, Pittsfield Economic Development Authority", which seal may be used whenever deemed advisable by the board on papers and documents issued or executed by the board or by any officer or employee designated by the board.
Section 17. The board shall prepare and adopt by-laws describing and stipulating its organization and operations. The board members shall annually, in the month of April, select a chairman, vice-chairman, and secretary, from among the membership who shall act as an executive committee. Members of the board may receive compensation from the authority which shall not exceed $500 per year for a board member or $1,000 per year for the chairman, vice-chairman or secretary. Board members may be reimbursed for actual expenses incurred in performance of their duties on approval of the board.
The board shall appoint and may, at its pleasure, remove a treasurer and a clerk who shall not be members of the board. Both offices, if the board deems advisable, may be held by the same person. The treasurer shall give the board a bond payable to the authority with a surety company authorized to transact business within the commonwealth and satisfactory to the board, such surety in such sums as the board may prescribe, and conditioned on the faithful performance of the duties of treasurer. The duties of the treasurer and the clerk shall be those usually pertaining to such offices and, in addition, such as may be from time to time prescribed by the board. The board may retain legal counsel for any and all appropriate purposes.
The director, with the approval of the board, shall from time to time appoint or employ such other experts, agents, officers, clerks and other employees as deemed necessary and shall determine their duties. The salaries or compensation of all persons appointed or employed under authority of this section shall be determined by the board and, together with other expenses, shall be paid by the authority and shall be considered a part of the expense of maintenance of the authority. The board shall establish an office within the city of Pittsfield in which its business may be conducted and in which plans, documents, records and other papers relating to its business, land and other works and properties shall be kept.
The authority shall at all times keep full and accurate accounts of its receipts, expenditures, disbursements, assets and liabilities which shall be open at all times for inspection by the city of Pittsfield or by any officer or duly appointed agent of the commonwealth.
The board shall make a report each year of its activities for the preceding year and shall, prior to February 1, submit a copy of such report to the state auditor and to the city of Pittsfield. A copy of such report shall also be submitted to the department of environmental protection.
Section 18. Initial organization of the board established under the provisions of section 8 shall take place within 180 days after the affirmative vote of the city council of Pittsfield for the formation of the authority. If the board does not organize itself and form the authority within 180 days, the action of the city council shall be null and void.
Section 19. The authority shall provide for early direct community involvement in each significant phase of response activities taken under this authority. This shall include providing the community with access to information necessary to develop comments on decisions regarding site characterization, risks posed by the site and selection of assessment, containment, and removal actions.
Process for involvement: (1) site assessment - whenever practicable, during the site assessment, the authority shall solicit and evaluate the concerns and interests of the community likely affected by the site by whatever means deemed appropriate by the authority; (2) site cleanup - after assessment and feasibility study and a method of cleanup has been determined, the authority shall solicit the views and preferences of the community likely affected by this cleanup including the disposition of the oil, hazardous material, pollutants, or contaminants at the site.
Section 20. The department of environmental protection shall promulgate rules and regulations, after notice and hearing in accordance with chapter 30A of the General Laws, to set up and implement a pilot project in the city of Pittsfield for the purpose of reuse and redevelopment to promote economic growth at said site. The department shall involve in the process all interested parties including, but not limited to, the United States Environmental Protection Agency, the attorney general of the commonwealth, the elected officials in the city of Pittsfield and the Massachusetts office of business development or its successor. The department shall prepare a preliminary plan not later than 120 days after the effective date of this act and shall publish notice thereof in the state environmental monitor. Such pilot project shall require significant economic activity for the city of Pittsfield providing net new jobs as defined by chapter 19 of the acts of 1993. Such pilot project shall include: (1) allowing the long-term use of one or more temporary solutions, as such term is defined in subsection (f) of section 3A of chapter 21E of the General Laws, to satisfy the remediation requirements of said section 3A; (2) establishing appropriate reporting and monitoring requirements for the construction and maintenance of such temporary solutions; (3) defining the department's responsibilities for reviewing and approving such temporary solutions and reporting and monitoring thereof; (4) providing for an appropriate and efficient process to allow public participation with respect to the department's approval and review of such temporary solutions as set forth in clause (3); (5) defining the limited circumstances in which, upon petition of the department or another person or party, a permanent solution may be required in lieu of the continuation of such temporary solutions; and (6) providing appropriate incentives, within the limits of state laws or regulations, to induce any participant in such a pilot project to complete remediation expeditiously.
Section 21. The authority may, in its reasonable discretion, enter into a binding agreement with federal and state natural resource trustees, representatives and other parties, including, without limitation, the national oceanic and atmospheric administration, the United States department of the interior, the Massachusetts executive office of environmental affairs and the Connecticut department of environmental protection, in which agreement said authority may agree to pay a portion of its net revenues to such trustees, representatives and other parties, as compensation for natural resource damages resulting from the release of polychlorinated biphenyls into the Housatonic river and its environs.
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