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The Danvers Rail Trail Ownership

The Town of Danvers entered into a lease agreement with the Massachusetts Bay Transportation Authority (MBTA) a corporate and political subdivision of the State of Massachusetts, on November 12, 2008, for the “Alternative Transportation Corridor” (hereinafter referred to as the Rail Trail).  The leased premises are to be used for the purposes of the installation, operation, maintenance and use of a rail trail as defined in M.G.L C.82§35A.  The Town of Danvers is the Owner or Operator as defined in M.G.L.C. 21E§2.

Rail trails are further defined in the general laws as a property converted from a former use as a railroad right-of-way to a revitalized use as a publicly owned, improved and maintained corridor for bicycle, pedestrian and other non-motorized public transportation, recreation, and associated purposes.  The remainder of the premises is to be used solely and exclusively by the Town of Danvers to access, construct, and maintain the Rail Trail, and for ancillary uses, which provide no revenue or other tangible benefit, and for other such uses as the MBTA may permit by prior written consent.

The MBTA reserves the right to require the Town of Danvers to install improvements (including but not limited to signs) designed to prevent or discourage those using the Rail Trail from entering onto the remainder of the premises.  A later section of this document will address the signage contemplated by the Rail Trail Committee to discourage such unauthorized use, as well as to set forth the intended conditions of Rail Trail use.

The lease sets forth the requirement that the Town of Danvers diligently act to fulfill its obligations under the lease for the design, bidding and construction of the Rail Trail project.  The Town of Danvers has acknowledged that a failure to do so may negate the municipal liability exemption for rail trails provided under M.G.L.C. 21E§2, as amended.

Under the terms of the lease the Town of Danvers assumes and accepts the Rail Trail “as is’, and the MBTA makes no warranty of any kind, express or implied, as to the condition of the premises or their suitability for use as a rail trail.  The Town of Danvers is responsible for complying with all applicable federal, state, county, municipal, and other statutes, laws, rules, orders, and regulations as they may pertain to the Rail Trail.  The Town of Danvers is responsible for maintenance of the Rail Trail and is obligated to keep, repair, manage, operate and maintain the premises in good clean order, operation, condition and repair.

The rights to the Rail Trail from the MBTA are granted subject to existing easements and rights of record to the extent that such easements, rights, and takings are still in effect and applicable.  The Town of Danvers may request that the MBTA exercise any rights it may have to modify or terminate an existing lease or license that would prevent the creation of a contiguous rail trail.

The MBTA has no obligation to provide security or lighting for the Rail Trail, and the Town of Danvers is responsible for providing public safety and emergency services to the Rail Trail.

The term of the lease is for ninety-nine years.  The lease is subject to possible earlier termination upon two (2) years written notice by the MBTA to the Town of Danvers, as the Town of Danvers acknowledges that the Rail Trail or a major portion thereof may be necessary for active railroad or other transportation purposes in the future.

The MBTA may also terminate this lease with respect to any part of the non-rail trail portion of the premises, with one (1) years written notice, so long as the use of that portion will not substantially interfere with the public uses of the Rail Trail.

Although trail ownership and trail maintenance are closely correlated, it is not unusual for a trail to be owned or leased by a government entity (such as the Town of Danvers) but to be maintained in whole or in part by community volunteers.  This can be a win-win relationship, and it appears that the Rail Trail in Danvers is well positioned to develop along these lines.

For example, the Danvers Electric Division has an ongoing interest in maintaining certain sections of the Rail Trail as a means to access power lines and substations.  This interest can be augmented by the efforts of local Rail Trail enthusiasts, scouting groups, and other community organizations with a focus on community service.  A similar pattern may exist with respect to assistance in the payment for maintenance, where trail groups may be able to help fund a share of maintenance through membership dues, donations, fundraising events, and local business and foundation grants, even though the Town of Danvers actually owns the trail.

The Rail Trail lease to the Town of Danvers will expire on November 11, 2107.  It is the hope of the Rail Trail Committee that the kind of forward-looking thinking that has made the Rail Trail available today as a source of recreation to Danvers residents, and the greater community at large, will continue to guide the use and enjoyment of the Rail Trail for the next century.

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