MEMORANDUM OF AGREEMENT BY AND AMONG THE FEDERAL TRANSIT ADMINISTRATION, THE MASSACHUSETTS STATE HISTORIC PRESERVATION OFFICER, AND THE MASSACHUSETTS BAY TRANSPORTATION AUTHORITY SUBMITTED TO THE ADVISORY COUNCIL ON HISTORIC PRESERVATION PURSUANT TO 36 CFR 800 REGARDING THE SILVER LINE PHASE III PROJECT BOSTON, MASSACHUSETTS WHEREAS, the U.S. Department of Transportation, Federal Transit Administration (FTA) and the Massachusetts Bay Transportation Authority (MBTA) propose to construct the Silver Line Phase III Project (Project) in the City of Boston, Massachusetts (undertaking); and WHEREAS, the FTA has determined that the proposed Project will have an adverse effect upon the Tremont Street Subway, an historic property that is a National Historic Landmark (NHL); and WHEREAS, the FTA has determined that the proposed Project will have an adverse effect on Piano Row Historic District, the Liberty Tree Historic District, the Liberty Tree Block and Union Hall at 1-9 Essex Street (individually listed and also a contributing building within the Liberty Tree Historic District), and the Boylston Building at 2-22 Boylston Street, all historic properties that are listed in the National Register of Historic Places (National Register), and are described in reports referenced in Attachment A of this Memorandum of Agreement (Agreement); and WHEREAS, the MBTA has, as of the date of this Agreement, performed certain archaeological identification surveys with respect to potential belowground historic properties that may be impacted by the Project, which surveys are described in archaeological reports referenced in Attachment B of this Agreement, and certain additional investigations will be performed during the course of Project development as designs and construction phases are finalized; and WHEREAS, the FTA has consulted with the Massachusetts State Historic Preservation Officer (MASHPO) pursuant to 36 CFR 800, regulations implementing Section 106 of the National Historic Preservation Act (NHPA) of 1966, as amended (16 U.S. C., 470f); and WHEREAS, the FTA has consulted with the Advisory Council on Historic Preservation (Council) in accordance with Section 110(f) of the NHPA regarding effects to National Historic Landmarks; and WHEREAS, the Boston Landmarks Commission (BLC) has participated in the consultation and has been invited to concur in the Agreement; and WHEREAS, the FTA has consulted with the Massachusetts Historical Commission (MHC) pursuant to Massachusetts General Laws, Chapter 9, Sections 26 et seq. (Massachusetts Historical Commission Act), and regulations implementing the Massachusetts Historical Commission Act at 950 CMR Part 71, as well as the Massachusetts State Archaeologist pursuant to Massachusetts General Laws, Chapter 9, Sections 26A and 27C, and 950 CMR Part 70; and Page 1 of 9
WHEREAS, the FTA and the MBTA have undertaken, through the Section 106 consultation and as part of the on-going design and review of environmental and other impacts required pursuant to the National Environmental Policy Act (NEPA), Section 4(f) of the Department of Transportation Act, the Massachusetts Environmental Policy Act (MEPA), and MGL Chapter 9, Section 26, a concerted and good faith effort to avoid, minimize, and resolve adverse effects to historic properties, including evaluation of alternatives to the proposed action; planning the Project to minimize impacts by providing a tunnel design that has shifted away from building foundations while staying within the right-of-way of major streets to the greatest extent possible; installation of groundwater observation wells along the Project alignments and at selected locations near the alignment in the Bay Village Historic District, which is eligible for listing in the National Register; and consultation with MHC, BLC, and signatories regarding the design of surface elements in the Boston Common. Signatories to this MOA include the FTA, ACHP, SHPO and the MBTA. The BLC is signing as a concurring party. NOW, THEREFORE, the FTA and the MASHPO agree that the undertaking shall be implemented in accordance with the following stipulations in order to take into account the effect of the undertaking on historic properties. Stipulations The FTA will ensure that the following measures are carried out: 1. New Construction The MBTA shall ensure that the design of the below-ground and surface elements of the Silver Line Phase III project are compatible with the historic, architectural, landscape, and engineering qualities of the adjacent historic properties in order to minimize and mitigate visual and setting effects. The MBTA shall ensure that new design is responsive to the recommended approaches to new construction set forth in the Secretary of the Interior s Standards for the Treatment of Historic Properties (1995) and Guidelines and that the design plans and construction specifications for the project are developed in consultation with, and submitted to, the Project Conservator, MASHPO, and BLC prior to construction for review and comment. 2. Recordation of Historic Properties A. The MBTA shall document the existing appearance along the right-of-way of all historic properties adversely affected by the Project prior to the start of construction. The MBTA shall, in consultation with MASHPO, evaluate existing photography as to its adequacy for documenting said appearance in accordance with MHC standards. B. The MBTA shall contact the Historic American Buildings Survey/Historic American Engineering Record (HABS/HAER) to determine what level and kind of recordation is required for the Tremont Street Subway, which is an NHL. C. The MBTA shall submit the scope of any additional photography and recordation to the FTA and MASHPO for review and approval prior to being undertaken. Unless otherwise agreed to by HABS/HAER and the MASHPO, the MBTA shall ensure that all documentation is completed and accepted by HABS/HAER for transmittal to the Library of Congress and the MASHPO for transmittal to the State Archives prior to construction, and that a copy is made available to the BLC. Page 2 of 9
3. Historic Interpretive Panels A. The MBTA shall develop, design, fabricate, and install interpretive panels regarding the history of the Tremont Street Subway in the Boylston Street and Chinatown Stations. The panels shall be developed in coordination with the MASHPO and BLC, and the draft panels designs shall be submitted to the Project Conservator, MASHPO, and BLC for review and comment. 4. Protection of Archaeological Resources A. For those below-ground areas impacted by the Project which have not been included in the archaeological investigations and reports previously conducted, (see Attachment B to this Agreement), including, but not limited to, areas where modifications to Project plans and specifications may occur during completion of the design process or during actual construction, MBTA shall: 1. Submit information on the location of new project areas to the FTA who shall, in consultation with the MASHPO and State Archaeologist, determine the need and scope for an archaeological identification survey. 2. Perform an identification survey and evaluation in a manner consistent with the Secretary of the Interior's Standards and Guidelines for Identification (48 FR 44720-23) and the Massachusetts State Archaeologist's permit regulations (950 CMR 70) and in doing so, shall take into account the National Park Service publications, The Archeological Survey, Methods and Uses, and the Council's publications Consulting About Archaeology Under Section 106, and Treatment of Archeological Properties: A Handbook. A report of such survey shall be submitted to the FTA, MASHPO, State Archaeologist, THPO (if appropriate), and Project Conservator for their review and timely comment. B. If such survey results in the identification of an Historic Property, the MBTA shall consult with the FTA, SHPO, State Archaeologist, and THPO (if appropriate) to identify suitable avoidance, minimization, and/or mitigation measures to resolve adverse effects to those Historic Properties. 5. Construction Activities Planning and Management The MBTA shall cause its contractor to prepare, in consultation with the Project Conservator, a Construction Management Plan (Plan) that summarizes how construction period management measures to protect historic properties shall be implemented. The MBTA shall submit this Plan, together with the comments of the Project Conservator, if any, in advance of the commencement of construction to the FTA, MASHPO, and BLC for their comments. Once approved by the MBTA, the Plan shall be forwarded to the FTA, MASHPO, and BLC. The Construction Management Plan shall include the following measures for protection from damage due to construction activities of Historic Properties adjacent to the project right of way where mining and cut-and-cover construction will occur, and in other Project construction areas: a. A Preconstruction Survey shall be completed prior to the start of construction activities. Documentation will be completed in accordance with MBTA Standard Construction Specifications, and a copy will be made available to the Project Page 3 of 9
Conservator. b. Inspection and Evaluation shall be undertaken during final design of building foundations immediately adjacent to slurry walls or excavations requiring shoring for support. If indicated by inspection and evaluation, repair or stabilization of such foundation(s) in accordance with the Secretary of the Interior's Standards shall be completed prior to the start of construction to minimize the possibility of damage. If repair or stabilization of such foundation(s) is required, proper notification will be given by the MBTA to both FTA and SHPO before work commences. c. Monitoring and Instrumentation of buildings shall occur during construction as needed within the Zone of Influence areas to monitor and record building behavior (movements, vibrations) during construction. Where the construction at a particular location requires dewatering, the Zone of Influence shall be extended as appropriate to include the area of groundwater draw down and geotechnical monitoring of Historic buildings within that additional area shall be provided. Such geotechnical monitoring shall be designed to detect building movements in real time before Damage is caused. d. Groundwater Monitoring will be maintained to ensure that groundwater levels remain constant and that timber piles supporting historic buildings are not exposed due to construction activities. e. Protection and Support Methods for buildings and structures will be used as required including Soil Stabilization Under Foundations, Compensation Grouting, and Foundation Underpinning. f. If the potential for damage to Historic Properties is detected during construction and monitoring, construction activities shall be modified as necessary to prevent damage from occurring. Repair of any Damage to Historic Properties adjacent to Project construction areas caused by the MBTA construction activities shall be performed in accordance with the Secretary of the Interior's Standards. g. Staging and Storage Areas shall be located in as unobtrusive a location as possible within Historic Properties if alternate locations are infeasible. h. Dust and Debris shall be carefully controlled, contained and disposed of properly. Noise from construction activities shall be limited according to environmental regulations and consistent with MBTA Standard Specifications for construction. i. Traffic Management Plans for construction (including construction vehicles and equipment) and restrictions on hours and locations for construction activities along the alignment and at staging and storage areas shall be specified in the construction documents. 6. Project Conservator A. The MBTA shall appoint and be responsible for the compensation of a Project Conservator (Project Conservator or Conservator). 1. Qualifications and Selection. The Conservator shall meet the National Park Service's standards set forth at 36 C.F.R. Part 61 regarding qualifications for preservation professionals. The MBTA shall use its standard consultant hiring Page 4 of 9
procedures. The MASHPO shall review and approve: 1) the Request for Proposals for the Project Conservator; 2) the qualifications of the final candidates under consideration by the MBTA; and 3) the scope of work outlining the duties and responsibilities of the Conservator to be included in the MBTA's contract with the Conservator. Upon selection of the Project Conservator, the MBTA shall provide written notification to the FTA, MASHPO, and BLC. 2. Term of Service. The Project Conservator shall serve during the construction process for the Project. 3. Duties and Responsibilities. The Project Conservator shall be in an independent monitor and advisor to assess compliance by the MBTA and FTA with this Agreement and shall have the following responsibilities: a) Review the final Project design plans and any Project Changes to evaluate and comment with respect to Historic Properties concerns. b) Review the Construction Management Plan and related instrumentation and monitoring documentation during construction. c) Monitor work performed on Historic Properties with respect to measures to resolve Adverse Effects. d) Monitor and assess the need for any additional work related to any future archeological investigations and/or unanticipated discoveries during construction (see Stipulations 4 and 7 of this Agreement regarding Protection of Archaeological Resources and Unanticipated Discoveries of Historic Properties) and make recommendations to the FTA, MASHPO, and MBTA. e) Coordinate with, and submit semi-annual reports to, the FTA, MBTA, and MASHPO regarding the progress of the Project in implementing measures to resolve Adverse Effects. f) Coordinate regarding the effects of the Project on Historic Properties with the BLC and other interested parties. g) Report to the MBTA, the FTA, and MASHPO concerning previously unidentified Adverse Effects of the Project on Historic Properties, including the nature and magnitude of any such unanticipated Adverse Effect and potential measures that may resolve such Effect. 7. Unanticipated Discoveries A. In the event that previously unidentified historic or archaeological resources are discovered which may be affected by the Project in accordance with the criteria of Adverse Effect under 36 CFR Part 800, the MBTA shall promptly notify the FTA, MASHPO, and State Archaeologist (when archaeological resources are involved), and shall submit to these parties a report evaluating the resource for purposes of determining eligibility for listing in the National Register. B. The FTA, MASHPO, State Archaeologist (with respect to archaeological resources), and MBTA will consult promptly on the eligibility of the resources and the FTA, will promptly determine whether such resources are historic properties subject to protection under 36 Page 5 of 9
CFR Part 800. If an affirmative determination is made by FTA, the MBTA shall promptly thereafter submit to the FTA, MASHPO and concurring parties a written report describing the nature of the effects which the Project will have on the particular historic properties, alternatives for the measures to resolve effects to such properties, and the measures to resolve adverse effects which the MBTA proposes to include as part of the Project's design and engineering documents. C. The MBTA shall ensure that in responding to previously unidentified discoveries, the protocol developed in consultation with MASHPO and attached hereto at Attachment C is followed. D. The MBTA shall ensure that if any human remains or unmarked human burials are identified during construction activities associated with the undertaking, work will cease immediately and the procedures under Massachusetts General Laws, Chapter 8, Section 6B; Chapter 9, Section 27C; and Chapter 7, Section 38A; will be implemented, as further described at Section F, below. MBTA shall insure that in responding to the discovery of any such human remains, the protocol developed in consultation with SHPO and attached hereto at Attachment D is followed. Administrative Provisions 8. Dispute Resolution If at any time during the implementation of this Memorandum of Agreement (MOA), the MBTA or the MASHPO objects to any actions proposed or the manner in which the terms of this MOA are implemented and cannot resolve the issue between them, they shall immediately notify and consult with FTA in order to resolve the objection. If, within 30 days of such written notice, FTA determines that such objection(s) cannot be resolved, FTA will forward all documentation relevant to the dispute to the Advisory Council on Historic Preservation (Council). Within 30 days after receipt of all pertinent documentation, the Council will either: 1. Provide FTA with recommendations, which FTA will take into account in reaching a final decision regarding the dispute; or 2. Notify FTA that it will comment pursuant to 36 CFR Section 800.7(b) and Section 110(1) of the National Historic Preservation Act and then proceed to comment. Any Council comment provided in response to such a request will be taken into account by FTA in accordance with 36 CFR Section 800.6(a)(1)(C)(ii) with reference to the subject of the dispute. If the Council does not provide comments regarding the dispute within 30 days after receipt of adequate documentation, FTA may render a decision regarding the dispute. In reaching its decision, FTA will take into account all comments regarding the dispute from the parties to the MOA. Any recommendation or comment provided by the Council will be understood to pertain only to the subject of the dispute; FTA s responsibility to carry out all other actions subject to the terms of this MOA that are not the subject of the dispute remain unchanged. FTA will notify all parties of its decision in writing before implementation of that portion of the undertaking that was subject to dispute. FTA s decision will be final. Page 6 of 9
9. Amendments and Noncompliance Any signatory to this MOA who determines that its terms will not or cannot be carried out or that an amendment to its terms must be made, that party shall immediately consult with the other signatories to the agreement to develop an amendment to this MOA pursuant to 36 CFR 800.6(c)(7) and 800.6(c)(8). The amendment will be effective on the date a copy signed by all of the original signatories is filed with the Council. If the signatories cannot agree to appropriate terms to amend the MOA, any signatory may terminate the agreement in accordance with Stipulation 11 below. 10. Termination If an MOA is not amended following the consultation set out in Stipulation 10, it may be terminated by any signatory. Within 30 days following termination, FTA shall notify the signatories if it will initiate consultation to execute an MOA with the signatories under 36 CFR 800.6(c)(1) or request the comments of the Council under 36 CFR 800.7(a) and proceed accordingly. 11. Duration If the terms of this MOA have not been implemented by [DATE], this MOA shall be considered null and void. In such event, the FTA shall so notify the parties to this MOA, and if it chooses to continue with the undertaking, shall reinitiate review of the undertaking in accordance with 36 CFR Part 800. Execution of this MOA and implementation of its terms evidences that the FTA has afforded the Council an opportunity to comment on the proposed Silver Line Phase III Project, and that the FTA has taken into account the effects of the undertaking on historic properties. Signatories: FEDERAL TRANSIT ADMINISTRATION By: Date: Richard H. Doyle, Regional Administrator ADVISORY COUNCIL FOR HISTORIC PRESERVATION By: Date: John M. Fowler, Executive Director MASSACHUSETTS STATE HISTORIC PRESERVATION OFFICER By: Date: Brona Simon, Massachusetts State Historic Preservation Officer Executive Director, Massachusetts Historical Commission MASSACHUSETTS BAY TRANSPORTATION AUTHORITY Page 7 of 9
By: Date: Daniel Grabauskas, General Manager Concur: BOSTON LANDMARKS COMMISSION By: Date: Ellen Lipsey, Executive Director Page 8 of 9
List of Attachments A. Historic Resources Inventory and Evaluation, MBTA Silver Line Phase III Project, Preferred Alternative. (Adams, et al., 2008, PAL Report No. 1508-2). Submitted to the Massachusetts Bay Transportation Authority, Boston, Massachusetts. B. Supplemental Cultural Resources Report, Reconnaissance Archaeological Survey, MBTA Silver Line Phase III Project. (Cherau 2008, PAL Report No. 1508-1). Submitted to the Massachusetts Bay Transportation Authority, Boston, Massachusetts. C. Unanticipated Discoveries Plan for the MBTA Silver Line Phase III Project. D. Procedures Guiding the Discovery of Unmarked Burials And Human Remains for the MBTA Silver Line Phase III Project. Page 9 of 9