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HomeMy WebLinkAboutAttorney Senie Letter and Acoustical Consulting Proposal Received 06.21.23SENIE c' ASSOCIATES, P.C. A T V () I: N F Y .5 A T L A W 15 Cape Lane Brewster, MA 02631 Phone (774) 323-3027 Fax (774) 323-3008 csenie@senie-law.com WWW.SENIE-LAW.COM June 21, 2023 Mr. Steven DeYoung, Chair Ms. Delores Fallon, ZBA Administrator Yarmouth Zoning Board of Appeals 1146 Route 28 South Yarmouth, MA 02664 Tel (508) 398-2231 x 1285 dfallon(c)yarmouth.ma.us RECEIVED J U N 21 2023 YARMOUTH BOARD OF APPEALS Re: Petition 5019 (continued from 05/11/23) Application of Maria Curtis, DBA Lightning Speed Go -Karts, Property Location: 228 Route 28 West Yarmouth, Assessors' Map 37 Parcel 148, Zoning District B-2 Dear Chair DeYoung, members of the Yarmouth ZBA and Administrator Fallon; You may recall that I appeared before your Board at the May 25' session of the public hearing on the above -reference matter. I mentioned the importance of a pre -construction acoustical analysis to determine the likely impacts of the proposed Go -Kart facility on the Sunbird Cape Cod Resort located right next door. This long-standing hotel business might be very negatively impacted if the special permit sought by the applicant is granted. Once again, my clients are Marilyn Lucht of 481 Buck Island Road, Unit 7E, West Yarmouth and Wagner Quintanilha of Wagner Hospitality Management, President, Sunbird Cape Cod Resort and Annex, 216-226 Route 28 West Yarmouth MA 02673. Since the May 25t' hearing session, I have provided the names of two acoustical engineering firms to the applicant's consultant BSC Group, and have secured a proposal from a third, which I attach for your review. As you can see, such a study would cost in the range of $12,000. Given the proximity (145 feet separating the Go -Kart track and the hotel building, which would span a parking area across which sound pressures are not likely to decay very much) there is a burden on the applicant to prepare such a study and present it to the Board. This burden is prescribed in Section 103.2.2 of the Zoning By-law, entitled "Criteria". "Special permits shall not be granted unless the applicant demonstrates that no undue nuisance, hazard or congestion will be created and that there will be no substantial harm to the established or future character of the neighborhood or town." Yarmouth ZBA Petition 5019 June 21, 2023 Page 2 On behalf of my clients, I request that the Board require such an analysis before acting on the special permit application. If the applicant will commission an acoustical study, my clients are willing to hire our consultant, Acentech, to complete the work described in the attached proposal In other words, we will sign the attached proposal and pay ourselves the $12,000 fee. This way the Board would have before it two studies, one funded by the applicant and one by my clients. This would provide maximum confidence in the appreciation of whether or not the above standard can be met. We would also agree that the two acoustical engineering firms can cooperate with one another and share data and reports. With such an approach, the Board will have the most complete and accurate information with which to make its decision on the application. I plan to attend the continuation of this hearing scheduled for tomorrow evening. In case you need to reach me, my cell phone number is (508) 330-6640. I have sent a copy of this letter and the attached report to BSC Group at the same time it is being sent to your office. Thank you. Sincerely, Christopher G. Senie Senie & Associates, P.C. ACENTECH A•'GU5FIp5 LPINOLOGY V MiAI''0% June 16, 2023 Wagner Quintanilha Wagner Hospitality Management 272 Huntington Ave Boston, MA 02115 Subject: Proposal for Acoustical Consulting Services Yarmouth Go -Kart Noise Evaluation West Yarmouth, MA Acentech Proposal No.: P637042.01 Dear Wagner, RECEIVED EJUN 2 1 2023 YARMOUTH BOARD OF APPEALS We appreciate the opportunity to submit this proposal for acoustical consulting services relating to a proposed Go -Kart track to be constructed next to the Sunbird Cape Cod Resort located at 216 Main Street, West Yarmouth, Massachusetts. We have reviewed the preliminary site plan and other materials you and your attorney have supplied. Accordingly, we offer the following scope of services and associated fees. SCOPE OF SERVICES The proposed scope -of -service includes two tasks as follows: (1) Site Visit with a Background Sound Survey, and (2) Noise Evaluation and Report. The details of each task are given below. TASK #1 - SITE VISITS FOR BACKGROUND SOUND SURVEY AND GO-KART MEASUREMENTS One of our staff will travel to the proposed hotel/Go-Kart site. During the site visit, we will set up long term sound monitoring instrumentation that will measure background sound levels for a period of up to seven days, measuring during daytime and nighttime periods. While onsite we will observe local conditions and sources of background sound. After the background sound monitoring is completed, Acentech will retrieve the instrumentation and compile the sound data to determine the background sound levels for daytime and nighttime periods. During one of the trips, we will also plan to visit another Go -Kart establishment on Cape Cod to measure sound levels from that facility. These data will be used in the Task #2 evaluation and documented in that report. TASK #2 - NOISE EVALUATION & REPORT Acentech will perform a noise evaluation to determine the acoustic impact the Go -Kart operation will have on your hotel and other sensitive receptors. To conduct this study, we will need the proposed facility's site plans and sound "source levels" for the types of Go -Karts to be used at the facility. This can be done in two ways. First is to use the sound levels from the proposed Go -Kart manufacturer taken from online sources (if available). Second is to use measurements from another Go -Kart business in the area (as discussed in Task #1). We will evaluate data from both sources. We will create a noise model of the project to predict noise levels at the property line, sensitive receptors and the other community locations as identified by yourself. The computed sound pressure levels will be compared to applicable local and State noise limits. We will prepare a report that will document the evaluation. BOSTON I LOS ANGELES I PHILADELPHIA I CHARLOTTESVILLE HQ: 33 Moulton Street I Cambridge, MA 02138 1 acente&.com Wagner Hospitality Management Yarmouth Go -Kart Noise Evaluation P637042,01 Page 2 FEES, TERMS AND CONDITIONS We propose to carry out work for this project on a fixed fee basis, in accordance with the attached Terms and Conditions and/or other mutually acceptable contractual arrangements for a fixed fee of $12,000 as broken down below. These fees include expenses for travel to the site and all instrumentation usage fees. TASK # NAME PRICE 1 Site Visits for Background Survey and Go -Kart Measurements $4,600 2 Noise Evaluation & Report $7,400 - TOTAL ALL TASKS $12,000 This effort does not include recommending any noise control features, attending any town or community meetings, or services related to being an expert witness in court. All of these services can be provided for Additional Fees. Fees for expert witness services are attached to this proposal. Lastly, we require a 50% retainer ($6,000) along with this authorization before work can commence. If you find this proposal acceptable you may authorize our services by issuing a purchase order that references the proposal and the approved tasks or, if you find it convenient, by filling in the signature block at the end of this letter and returning a signed copy. Please contact me at 617-499-8058 or mBahtiarian@acentech.com with any questions or comments. I look forward to hearing from you and to the opportunity to work with you on this project. Sincerely, ACENTECH INCORPORATED Michael Bahtiarian, INCE Bd. Cert. Principal Cc: Marc Newmark; Acentech Chris Senie; Senie & Associates Enclosures: Acentech Terms and Conditions Acentech Expert Witness Rates ACCEPTED for Wagner Hospitality Management By (Signature): Name (Print): Title: Date: Tasks Accepted: ACENTECH ACOUSTICS I TECHNOLOGY I VIBRATION ((( A C EN T.E C H 2023 ACENTECH TERMS AND CONDITIONS Acentech Incorporated (Acentech) will perform the work ("Services") specified in the Scope of Services contained in the Proposal to which these Terms and Conditions are attached, in accordance with the following provisions. Unless a superseding agreement with alternative terms and conditions is mutually agreed to, these Terms and Conditions will be in effectfrom the time that Acentech receives notice to proceed from the Client. I. SERVICES TO BE PROVIDED; STANDARD OF CARE Acentech and its Subconsultants will perform the Services with the degree of care and skill ordinarily exercised by similarly situated consultants. Client agrees that the Services will be provided without warranty, express or implied, except as may be stated explicitly in the Proposal. Acentech will exercise usual and customary professional care in its efforts to comply with applicable codes, regulations, laws, rules, ordinances and other such requirements in effect as of the date of the acceptance of the Proposal. II. COMPENSATION AND PAYMENT Client will compensate Acentech on a time -and -materials or fixed price basis as specified in Acentech's Proposal. A. Time and Materials 1. Best Efforts: Acentech will use reasonable efforts to complete the Scope of Services within the estimated fees specified in the Proposal. Acentech will not provide the proposed Services beyond the estimated fee without the Client's authorization for additional funds. 2. Professional Staff: Acentech will furnish the services of its employees at its standard hourly rates at the time Services are provided. 3. Other Services and Costs: Expenses incurred by Acentech required for the completion of the Scope of Services, including travel, meals, supplies and professional services obtained from third parties are reimbursable at cost plus a 10% administrative handling charge. Other services provided, including instrumentation usage and reproductions, will be billed at Acentech's standard rates. All applicable sales tax, customs and Project -specific insurance premiums will be billed at cost. B. Fixed Price 1. Services Specified: Acentech will deliver the services specified in the Scope of Services on a fixed price basis billed on a percentage of work completed unless an alternative billing schedule has been accepted. Any Project or phase fully billed at 100%will be considered complete unless otherwise agreed. 2. Reimbursable Expenses: Unless specifically included in the fixed fee, reimbursable expenses including travel, meals, supplies and other professional services obtained from third parties are reimbursable at cost plus a 10% administrative handling charge. C. Changes In Scope of Services / Additional Services 1. Any services authorized by Client not explicitly included in the Scope of Services within the Acentech Proposal will be considered Additional Services and will be billed on a time and materials basis unless a contract modification or change order has been agreed to by Acentech and Client. 2. Additional Services result from, but are not limited to: a) changes in the Project size, budget or programmed use; b) the Project schedule is significantly delayed; c) changes from the Client requiring redesign of previously completed work; d) Acentech's design recommendations are not reviewed in a timely manner resulting in additional work; e) any rework required for the Documents or additional services due to design changes; and, f) any other delays beyond Acentech's control. 3. Document modifications or additional construction administration services requested by Client due to issues beyond Acentech's control will be considered additional services and will be billed on a time and materials basis as outlined in paragraph 8.1. D. Payments Invoices are due upon receipt. Client shall be responsible to Acentech for payments, and such obligation shall not be conditioned upon Client's receipt of payments from the Owner or any other party. III. INSTRUMENTS OF SERVICE / OWNERSHIP OF DOCUMENTS A. Acentech shall be deemed the author and owner of all Instruments of Service, including drawings, reports and specifications, and shall retain all common law, statutory and other rights, including copyrights In such Instruments of Service, subject onlyto a limited, non-exclusive, non -transferable license to use the Instruments of Service solely in connection with the Project. Submission or distribution of Instruments of Service to meet official regulatory requirements or for similar purposes in connection with the Project is not to be construed as publication. ACENTECH ACOUST3CS I TECHNOLOGY I V3BRATION �{ ACENTECH B. The Client agrees not to use or distribute the Instruments of Services for future additions or alterations to this Project or any other project(s), and agrees not to make changes or modifications to such Instruments, without Acentech's express written consent. Acentech reserves the right to seek remedies for unauthorized use of Acentech documents. C. Unauthorized use or modification of the Documents by the Client will be atthe Client's sole risk and without liability to Acentech or its Subconsultants. Client shall defend, indemnify, and hold harmless Acentech from and against any and all losses, claims, demands, liabilities, suits, actions, damages and expenses (including reasonable attorney's fees) arising out of or resulting from such unauthorized use or modification, including any expenses incurred by Acentech to enforce its rights hereunder. IV. PUBLICITY Acentech may publish its role in the Project unless otherwise directed by the Client. V. INSURANCE AND LIMITATIONS OF LIABILITY A. Acentech will furnish appropriate insurance certificates for general and professional liability upon request. B. Acentech and the Client waive consequential damages, including but not limited to, damages for loss of profits, loss of revenue and loss of business, loss of business opportunities, for claims, disputes or other matters in question arising out of or relatingto this Agreement. The Client agrees that Acentech's total aggregate liability to the Client or any third party for any and all injuries, claims, losses, expenses, or damages including reasonable attorney's fees, arising out of or in any way related to the Project orthis Agreement from any cause or causes, including, but not limited to, ACENTECH'S AND/OR SUB- CONSULTANTS' NEGLIGENCE, ERRORS, OMISSIONS, STRICT LIABILITY OR BREACH OF CONTRACT, SHALL NOT EXCEED THE GREATER OF $25,000 OR TWO TIMES THE FOR THE SERVICES PROVIDED BY ACENTECH UNDER THIS AGREEMENT. C. Acentech and Client mutually agree, to the fullest extent permitted by law, to indemnify and hold each other harmless from any and all damage, liability or cost (including reasonable attorney's fees and defense costs) to the extent caused by their own negligent acts, errors or omissions and those of anyone for whom they are legally liable and arisingfrom the Project that is the subject of this Agreement and due to their failure to perform their obligations hereunder. D. Acentech shall not be in default of its obligations to the extent that its performance is delayed or prevented by causes beyond its control, including but not limited to acts of God, delays in delivery by vendors, and strikes or other labor disturbances. VI. TERMINATION Either parry mayterminate this Agreement in whole or in part at anytime by written notice to the other; such notice is effective upon receipt. In the event of a termination initiated by the Client, Acentech shall be compensated in accordance with this Agreement forthe services rendered and expenses incurred or committed to up to the effective date of notice of termination. The provisions of this Agreement that contemplate surviving the expiration or termination of this Agreement and the Services shall survive the completion of the Services and/or termination or expiration of this Agreement. VII. GENERAL AGREEMENT A. The Agreement between the parties consists solely of the Proposal and these Terms and Conditions and represents the entire agreement between the parties with respect to the Services and supersedes all prior agreements. 8. Governing Law The substantive laws of the Commonwealth of Massachusetts shall govern any disputes between Acentech and the Client arising out of the interpretation and performance of this Agreement. C. Mediation Acentech and the Client agree that any disputes arising under this Agreement and the performance thereof shall be subject to nonbinding mediation as a prerequisite for further legal proceedings. D. Certification Acentech shall not be required to sign any documents that would result in Acentech's having to certify, guaranty or warrant the existence of conditions that would require knowledge, services or responsibilities beyond the proposed Scope of Services. F. Relationship of Parties In furnishing the Services, Acentech is acting as an independent contractor. The Parties do not intend to create a contract of agency, a joint venture or a partnership of any type. Acentech is not an agent of Client and has no authority to represent Client as to any matters, except as expressly authorized in the Agreement. ACENTECH ACOUSTICS I TECHNOLOGY i VIBRATION ACENTECH ACOUSTICS TECHNOLOGY VIBRATION 2023 Legal and Expert Witness Rates CATEGORY RATE ($/hr) Testimony, Deposition, Arbitration $425 and Associated Preparation Investigation and Analysis $125 - $295