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  • Acts
  • 2008
  • Chapter 306 AN ACT AUTHORIZING THE ROSE FITZGERALD KENNEDY GREENWAY CONSERVANCY, INC. TO OPERATE, MANAGE AND MAINTAIN THE ROSE KENNEDY GREENWAY.

Whereas, he deferred operation of this act would tend to defeat its purpose, which is to provide for the preservation, operation, maintenance and improvement of certain open space and parkland in the city of Boston, referred to as the Rose Kennedy Greenway, therefore it is hereby declared to be an emergency law, necessary for the immediate preservation of the public convenience.

Be it enacted by the Senate and House of Representatives in General Court assembled, and by the authority of the same as follows:

SECTION 1. Notwithstanding any other general or special law to the contrary, the following entities shall have all the rights, powers and responsibilities enumerated herein: The Rose Fitzgerald Kennedy Greenway Conservancy, Inc., a private, charitable, non-profit corporation created by articles of organization; duly filed with the secretary of state’s office on July 15, 2004; the city of Boston; the Massachusetts Turnpike Authority; and the commonwealth. Nothing in this act shall be construed as establishing the conservancy as a governmental body. The memorandum of agreement entered into by the conservancy, the city of Boston, the Massachusetts Turnpike Authority and the commonwealth on July 12, 2004, shall be terminated as between the conservancy, the authority, the commonwealth and the city, upon the execution of the lease between the conservancy and the authority authorized in section 10, and thereafter this act shall supersede in all respects the terms set forth in the memorandum of agreement.

SECTION 2. As used in this act, the following words shall, unless the context requires otherwise, have the following meanings:-
“Agreement”, the lease or other agreement between the conservancy and the authority authorized by section 10.
“Authority”, the Massachusetts Turnpike Authority.
“Board”, the board of directors of the conservancy.
“Boston zoning code”, that code as now amended and as may be amended in the future, adopted under and subject to chapter 665 of the acts of 1956.
“By-laws”, the by-laws of the conservancy as may be amended from time to time.
“City”, the city of Boston, acting by and through its mayor.
“City layout”, the system of city streets and sidewalks adjacent to the greenway and the other open space parcels, as approved or adopted by the city’s public improvement commission in accordance with applicable law.
“Commonwealth”, the commonwealth of Massachusetts, acting by and through its executive office for administration and finance and its executive office for transportation and construction.
“Conservancy”, the Rose Fitzgerald Kennedy Greenway Conservancy, Inc.
“Development parcels”, parcels 1, 1B, 2, 2A, 2C, 6, 9, 11A, 12 and 18 located between Causeway street and Kneeland street, as shown on the plan referred to herein and for which a real estate development agreement has been executed by the authority.
“Greenway”, the open space and park parcels between the northerly limit of Causeway street and the southerly limit of Kneeland street in the city, not including the development parcels, and including at a minimum parcels 5, 8, 10, 13, 14, 15, 16, 17, 19, 21, 22 and 23 a through d, inclusive, as shown on the plan, together with any additional parcels and other areas as may not be developed by the authority, or as the legislature may from time to time add to the greenway, provided, however, that in no event shall the greenway include any element or space, deemed by the written certification of the authority’s executive director and chief engineer, to be necessary for the use, operation or maintenance of the Thomas P. O’Neill, Jr. tunnel.
“Greenway leadership council”, or “council”, the advisory body of community members provided in section 9.
“Mayor”, the mayor of the city of Boston or his designee.
“Other open space parcels”, all other landscaped and sidewalk areas owned by the authority and shown on the plan that are not used exclusively for highway purposes, as well as such of development parcels 6, 12 and 18, for which the authority has not then executed a development agreement and such other properties as may be agreed to by the conservancy and the authority; provided, however, that in no event shall the other open space parcels include any element or space deemed by the written certification of the authority’s executive director and chief engineer to be necessary for the use, operation or maintenance of the Thomas P. O’Neill, Jr. tunnel.
“Plan”, a plan entitled “Parcel Land Use – Massachusetts Turnpike Authority - 2008”, drawn by Don Kindsvatter, April – 1999 and most recently revised May 2008, the original of which is to be kept on file at the office of the authority, and copies of which are to be filed by the authority with the clerk of the senate, the clerk of the house of representatives, and the secretary of the commonwealth.
“Programming” or “program”, the scheduling and permitting of events and other activities to be conducted on the greenway or other open space parcels.
“Public realm”, the city sidewalks located between Causeway street and Kneeland street in the city that are adjacent to the greenway, the development parcels, and the other open space parcels, all as shown on the plan.
“Special agreements” agreements with the city governing maintenance responsibility issues arising from special features, materials, treatment or use of the public realm.

SECTION 3. (a) The conservancy shall have the following responsibilities:-
(1) to operate, manage, improve and maintain the greenway and the other open space parcels beginning December 1, 2008 or sooner as the responsibility for those activities is transferred from the authority;
(2) to enter into a lease with the authority to operate, preserve, maintain, program and manage the greenway and the other open space parcels as a first class public space in accordance with the terms of any such lease, provided that the conservancy shall not have the power to sublease, mortgage, alienate, pledge as security or encumber the greenway or the other open space parcels without the enactment of further legislation, and provided further that the greenway shall be treated as a public park and a traditional open public forum without limiting free speech, and entitled in all respects to protections afforded to public parkland under article XCVII of the amendments to the Massachusetts constitution;
(3) to accept, by transfer of deed, lease or otherwise, public or private property that relates to or enhances the conservancy’s mission as set forth herein, but not to further alienate said property;
(4) to adopt rules and regulations governing conduct and activity within the greenway and the other open space parcels, after consultation with the commissioner of the department of conservation and recreation and the greenway leadership council, and subject to the approval of the authority;
(5) to take action, consistent with its powers enumerated herein, to ensure that the greenway and the other open space parcels are maintained at a high standard;
(6) to receive and accept contributions or grants for aid in the operation, management and maintenance of the greenway, the other open space parcels and the public realm, from the commonwealth, or any public instrumentality or any political subdivision thereof, or any federal agency or private entity or individual;
(7) to create and make available to the public an annual statement of goals, and annual review of goals pursuant to section 7.
(b) The conservancy shall have the following powers:-
(1) to adopt, amend and re-state its by-laws for the regulation of its affairs and the conduct of its business;
(2) to enter into 1 or more agreements or special agreements with the city to maintain the public realm and, as necessary, to fulfill other provisions of this act;
(3) to accept, by transfer of deed, lease or otherwise, public or private property that relates to or enhances the conservancy’s mission as set forth herein, but not to further alienate said property;
(4) to develop and implement a protocol regarding the development or construction of any design-features, memorials, buildings or structures of any kind located within the greenway or the other open space parcels following a duly noticed public hearing; provided, however, that said protocol shall include a requirement for review and comment by the leadership council; and provided, further, that (i) the authority shall have the right to review and approve all such design-features, memorials, buildings or structures, and (ii) all such buildings and structures shall be subject to compliance with the city zoning code to the full extent such code is applicable as of the date hereof;
(5) to review in a manner consistent with city of Boston ordinances and to advise the city’s parks and recreation commission, with respect to the construction or alteration of any building or structure within 100 feet of the greenway or the other open space parcels, provided that nothing herein shall be construed to alter or diminish the city’s authority over the development of any building or structure on the development parcels or within 100 feet of the greenway or the other open space parcels;
(6) to enter into contracts and agreements with the commonwealth, the authority, the city, any leaseholder of a development parcel, any owner or leaseholder of property adjacent to the greenway and the other open space parcels, and any other entity or individual in furtherance of its rights and powers under this act, provided that any contract or agreement between the conservancy and the commonwealth, the authority, the city or any other public agency shall be a public record and that all documents and records made in connection with the use and expenditure of public funds shall be considered public records as that term is defined by state law; and
(7) to do all other acts and things that are consistent with its powers as set forth herein and with its status as a charitable corporation under applicable internal revenue service rules.

SECTION 4. The conservancy shall retain and use as part of its permanent endowment certain funds, specifically $5,000,000 received from the authority as a dollar for dollar match from private and other contributions.

SECTION 5. The commonwealth, acting by and through the department of highways, shall, in consultation with the authority and the city, lay out and establish a system of city streets and sidewalks and vest the city with a public way easement within the area of the greenway. The city layout shall be subject to the prior approval of the city, acting by and through its public improvement commission, which shall be deemed to be in full satisfaction of the commonwealth’s obligation to create such a street and sidewalk system pursuant to that certain land disposition agreement dated June 12, 1992, and which shall be sufficient evidence to establish such ways and sidewalks in the city for all purposes. The conservancy and the city may execute 1 or more special agreements providing that the conservancy shall maintain the public realm.

SECTION 6. The conservancy shall program the greenway and the other open space parcels it is responsible to operate, manage and maintain in accordance with the lease and this legislation. All programming, once approved by the conservancy, shall be subject to all applicable city ordinances and regulations regarding licensure and permitting. In consideration of the agreement between the authority and the conservancy for the operation, maintenance and management of the greenway and the other open space parcels, the conservancy may charge reasonable fees for programming on the greenway and the other open space parcels to the party sponsoring the program, and revenues earned from such programming fees shall be paid to the conservancy; provided that the treatment and use of such fees shall be subject to compliance with applicable federal law and the agreement.

SECTION 7. Not later than January 31, 2010 and annually thereafter, the conservancy shall prepare an annual statement describing its goals for the upcoming year. At a minimum, the statement shall include the following: (a) the number and nature of events and program activities to be conducted during the year; (b) the number and characteristics of the public expected to participate in these events; (c) any fees or charges to the public associated with the planned activities and the planned use of such fees or charges; (d) maintenance activities to be undertaken; and (e) any physical modifications or improvements to be carried out.
Not later than 3 months after the close of the calendar year, the conservancy shall prepare an annual report describing its performance against the goals for the prior year, and detailing all revenues and expenditures of funds for the prior year, regardless of source. The conservancy shall submit said report to the authority, the secretary of transportation and public works, the commissioner of the department of conservation and recreation, the clerks of the house and senate, the city, and the greenway leadership council.
The conservancy shall present the annual report and statement to the public at the annual meeting. The conservancy shall hold 3 additional public meetings, quarterly, to discuss and present, at a minimum, updates and changes to the statement.

SECTION 8. The conservancy shall be governed by a board of directors which shall be dedicated to ensuring that the greenway is operated, maintained, managed and actively programmed, financed and improved to the highest standards and in accordance with this act, its articles of organization and by-laws. The by-laws shall contain at a minimum provisions to advance the public’s interest in the greenway and the other open space parcels and create an important resource of national, regional and statewide significance for residents and visitors to the city and the neighborhoods and districts in which it is situated, and shall be otherwise amended as necessary to be consistent with the provisions of this act. In the event of conflict between the by-laws and any portion of this act, this act shall control. The board shall meet regularly and shall conduct a public annual meeting at a convenient location in the city of Boston. All deliberations of the board concerning: (i) the use and expenditure of public funds; (ii) agreements with public agencies; and (iii) the exercise of its powers under clauses (4) and (5) of subsection (b) of section 3 herein, shall be conducted in open session.
The board of directors shall consist of 15 persons who shall be voting members, and 2 non-voting ex officio members, as described herein. The by-laws shall contain provisions ensuring that as a director’s term expires, the board of directors fill each vacant position, provided that: (i) the initial chairman of the board shall be the chairman of the conservancy then serving in that capacity at the time of passage of this act and he shall serve as a director for a term of 3 years and continue as chairman for 1 year from the effective date of this act, and thereafter said chairman or any other member of the board of directors shall be chosen chairman of the board in accordance with the by-laws; (ii) 2 directors shall be residents of the neighborhoods adjoining the greenway 1 such director shall be voted from nominees selected by the state representative representing the third suffolk district for a term of 5 years and 1 such director shall be voted from nominees selected by the state senator representing the first suffolk and first middlesex district for a term of 5 years; (iii) 1 director shall be selected by the board from a list of names provided by the governor; (iv) 1 director shall be selected by the board from a list of names provided by the mayor of the city of Boston; (v) 1 director shall be the chairperson of the greenway leadership council; and (vi) the remaining directors shall be selected for 3 year terms by a majority vote of said board then serving. In addition, the secretary of the executive office of energy and environmental affairs and the secretary of the executive office of transportation and public works, or their respective designees, shall serve as ex officio non-voting members of the board. After the cessation of the initial chairman’s term, the future director position caused by the initial chairman’s end of term shall be chosen by the then board of directors. The directors serving as such on the effective date of this act shall continue to serve as directors until the end of their respective terms, or resignation or any other reason, and their successors shall be selected by the board in accordance with the provisions of this act and the by-laws. The board shall, following the effective date of this act, select additional members in accordance with this act so that at all times there are 15 directors.
All directors and committee members shall serve without compensation. No director or committee member shall be deemed a public employee or a state, special state, municipal or special municipal employee or a civil officer by virtue of his position as a director or committee member. Other provisions relative to tenure, removal, resignation, quorum, meetings, notices, and the like shall be contained in the by-laws, which may be amended, revised and adopted by the conservancy as it deems appropriate and in a manner not inconsistent with this act or the agreement.

SECTION 9. The board shall appoint a greenway leadership council as described herein. The greenway leadership council shall consist of 13 citizens of the commonwealth each appointed to 2 year terms and shall include residents of each neighborhood abutting the greenway; 2 council members shall be appointed by the board from nominations made by the mayor; 2 council members shall be appointed by the board from nominations made by the governor, 1 of whom shall be the secretary of energy and environmental affairs or his designee; 2 council members shall be appointed from nominations made by the state representative representing the third suffolk district, and 2 council members shall be appointed from nominations made by the state senator representing the first suffolk and first middlesex district. The remaining 5 members of the council shall be chosen by the board and shall have expertise and background in any of the areas of landscape design, landscape maintenance, horticulture, architectural design, urban design, urban parks, city planning, cultural events and programs, tourism, visual and performing arts, youth programming and programming for those with disabilities. Council membership shall strive to reflect the gender, ethnic, cultural, and applicable neighborhood demography of the city of Boston. The council members serving as such on the effective date of this act shall continue to serve as council members until the end of their respective terms, or resignation or any other reason, and their successors shall be selected by the board in accordance with this act and the by-laws. The board shall, following the effective date of this act, select additional members in accordance with this act so that at all times there are 13 council members.
The council shall act as the advisory committee to the conservancy and shall assume all of the duties of the mayor’s central artery completion task force, so-called, with respect to the greenway, the other open space parcels, and the public realm. The council shall elect a chairperson who shall be chosen from among the 2 council members appointed by the mayor, but the chairperson shall also be a resident of a neighborhood abutting the greenway. The chairperson shall establish council meeting agendas and call and moderate meetings of the council. The conservancy shall consult with the council with respect to any additions, modifications or alterations to the greenway or the other open space parcels. The council shall assist the conservancy as representatives of the public interest in the success of the greenway and may contribute to the fundraising, management and programming activities of the conservancy as desired by the board. The council shall meet in a location proximate to the greenway no fewer than 6 times each year. The board shall meet in open session with the council at least quarterly each year.

SECTION 10. The authority shall lease to the conservancy for an initial period not to exceed 25 years, commencing not later than December 1, 2008, at nominal consideration the open space and park parcels within the greenway. The lease may provide for up to 3 separate 10-year extensions. The terms of such lease shall include the terms of this act and be prepared and approved by the secretary of transportation, and shall at a minimum contain covenants: preserving the greenway as park land subject to the protections afforded to public parkland under Article XCVII of the Amendments to the Massachusetts Constitution and ensuring that the greenway and the other open space parcels shall always be open to the general public; providing for the assumption and responsibility for liability coverage; providing for the operation, maintenance and programming, subject to the conservancy’s reasonable regulations governing its use. Such lease shall also contain covenants providing: for the provision of 1 or more maintenance facilities for the conservancy by the authority or the commonwealth; that any and all improvements made to the premises shall become those of the authority upon termination or default; that the community participation stipulated herein is adhered to; and that the use and expenditure of public funds received by the conservancy be reported annually to the secretary of transportation and public works and to the chairs of the house and senate committees on ways and means; and shall include such other terms and conditions, consistent with this act, as the said secretary shall deem to be in the public interest. The terms of such lease or agreement shall also contain language defining an event of default as a breach of any covenant contained therein and shall provide remedies including, but not limited to, specific performance, self help, termination, and transfer of conservancy funds to the commonwealth. On or before December 1, 2008, the secretary of transportation shall prepare and secure the execution of the lease in accord with this act. In the event of a failure by the secretary to complete said lease execution by such date all liability for the greenway shall become the responsibility of the conservancy.

SECTION 11. Chapter 182 of the acts of 2008 is hereby amended by striking out section 89 and inserting in place thereof the following section:-
Section 89. (a) Notwithstanding any general or special law to the contrary, after complying with clause (a) of section 5C of chapter 29 of the General Laws the comptroller shall dispose of the consolidated net surplus in the budgetary funds for fiscal year 2008 as follows: (1) if the consolidated net surplus is $25,000,000 or less, the comptroller shall transfer said amount to the Massachusetts Life Sciences Investment Fund established by section 6 of chapter 23I of the General Laws; or (2) if the consolidated net surplus is $41,000,000 or greater, the comptroller shall transfer said amount as follows: (a) $25,000,000 shall be transferred to said Massachusetts Life Sciences Investment Fund; (b) $3,000,000 shall be transferred to the Workforce Competitiveness Trust Fund, established in section 2WWW of chapter 29 of the General Laws; (c) $2,000,000 shall be transferred to the Massachusetts Science, Technology, Engineering, and Mathematics Grant Fund established in section 2MMM of said chapter 29, as so appearing; (d) $4,000,000 shall be transferred to the Endowment Incentive Holding Fund established in section 7; provided, however, that $2,000,000 from the Endowment Incentive Holding Fund shall be allocated to University of Massachusetts campuses; provided further, that $1,000,000 from the Endowment Incentive Holding Fund shall be allocated to state college campuses; and provided further, that $1,000,000 from said Endowment Incentive Holding Fund shall be allocated to community college campuses; (e) $5,000,000 shall be transferred to the Farm Capital Linked Loan Fund established pursuant to section 29 of chapter 20 of the General Laws; (f) $2,000,000 shall be transferred to the Rose Fitzgerald Kennedy Greenway Conservancy, Inc. for the purpose of operating, managing, improving and maintaining the Rose Fitzgerald Kennedy Greenway in the city of Boston; provided that upon any transfer made pursuant to this clause, the Massachusetts Turnpike Authority shall have no further obligation to pay any costs related to the operation, management, improvement or maintenance of the greenway and the other open space parcels; and (g) any amount remaining after the transfers pursuant to clause (a) to (f), inclusive, shall be transferred to the Commonwealth Stabilization Fund established pursuant to section 2H of chapter 29 of the General Laws. If the amount remaining after the designations in said clause (a) of said section 5C of said chapter 29 of the General Laws is greater than $25,000,000 but less than $41,000,000, then after making the transfer required in clause (a) of this section, the comptroller shall proportionately reduce the transfers required in clauses (b) to (f), inclusive; and provided further, that allocations from the Endowment Incentive Holding Fund pursuant to clause (d) shall also be proportionately reduced.
(b) All transfers specified in this section shall be made from the undesignated fund balances in the budgetary funds proportionally from the undesignated fund balances, but no such transfer shall cause a deficit in any of the funds.

SECTION 12. To provide for the operation, management, improvement and maintenance of the greenway and the other open space parcels, the commonwealth shall provide financial assistance to the conservancy no later than 30 days prior to the beginning of each fiscal year in an amount equal to 50 per cent of the annual budgeted costs of operating, maintaining, improving and managing the greenway and the other open space parcels, as agreed between the conservancy, the secretary of energy and environmental affairs and the secretary of transportation and public works, for the next succeeding fiscal year, provided that the total annual amount of such financial assistance shall not exceed $5,500,000, and shall be paid annually from interest earnings on the Central Artery and Statewide Road and Bridge Infrastructure Fund, established in section 63 of chapter 10 of the General Laws. Upon dissolution of the conservancy or termination of the lease, any funds then held by the conservancy shall be paid to the commonwealth.

SECTION 13. Section 63 of chapter 10 of the General Laws is hereby amended by striking out the seventh paragraph, as appearing in the 2006 Official Edition.

SECTION 14. Section 12 shall take effect as of July 1, 2009, and shall expire on June 30, 2012.

SECTION 15. Section 8 shall take effect on December 1, 2008.

Approved August 11, 2008