Memorandum Of Understanding (MOU) Between The Executive Office of Administration And Finance And The Architectural Access Board Relative To An Expedited Variance Process For Projects Funded Through the American Recovery and Reinvestment Act of 2009

WHEREAS, the Massachusetts Architectural Access Board (hereafter, the "AAB" or the "Board") is authorized by G.L. c. 22, § 13A to promulgate and enforce rules and regulations designed to make public buildings accessible to, functional for and safe for use by persons with disabilities;

WHEREAS, the aforementioned chapter 22, section 13A prohibits construction, reconstruction, alteration or remodeling of a public building except in conformity with the rules and regulations of the AAB;

WHEREAS, the aforementioned chapter 22, section 13A, provides for modification of, or substitution for, such rules or regulations if the Board determines that compliance with said rules and regulations in a particular case is not feasible technologically or would result in excessive and unreasonable costs without any substantial benefit to persons with disabilities;

WHEREAS, in all petitions for variances, the burden of proof shall be on the party requesting a variance to justify its allowance;

WHEREAS, in December 2008, Governor Patrick directed the establishment of task forces to begin mobilizing the Commonwealth for the potential receipt of hundreds of millions of dollars in federal economic recovery funding for "shovel ready" infrastructure projects;

WHEREAS, receipt of these funds will create desperately needed jobs throughout the Commonwealth and allow the Commonwealth to lay the foundation for long term economic growth;

WHEREAS, the task forces included a Permitting Task Force, which was charged with developing recommendations to speed up state and local permitting processes for projects funded through any federal economic recovery legislation;

WHEREAS, the Permitting Task Force recommended that the AAB pursue a Memorandum of Understanding ("MOU") with the Executive Office for Administration and Finance ("ANF") to expedite the adjudication of variance requests presented to the AAB in connection with projects that are eligible for federal economic recovery funding, but that may lose such eligibility due to federal construction deadlines if an expedited variance process is not established;

WHEREAS, the AAB and ANF remain committed to ensuring that required accessibility upgrades take place as part of the overall work of any project funded pursuant to the American Recovery and Reinvestment Act of 2009 ("ARRA");

WHEREAS, the AAB and ANF, together with the whole of state government, share the common objective of expediting the commencement and completion of ARRA-funded projects and programs;

NOW THEREFORE, in recognition of the jurisdictional triggers of 521 C.M.R. and in an effort to ensure that ARRA monies are able to be expended for immediate and proper use and in full compliance with applicable federal deadlines, ANF and the AAB do hereby agree as follows:

  1. Responsibilities of the Parties

    1. The Architectural Access Board
      1. If necessary to further the objectives of this MOU, the Board will publish emergency regulations to amend and expedite the variance process set forth in 521 C.M.R.
      2. Towards that end, upon receipt of any reports submitted pursuant to section I(B)(1) of this MOU, the Board shall, within 30 calendar days, review and rule upon the variance requests set forth in such reports, provided that the information submitted is sufficient to do so, and shall provide notification of its rulings to the affected parties, including ANF, as provided in section IV, below, consistent with the Board's standard procedures. The Board's review of each variance request shall occur prior to the issuance of a building permit for the project that is the subject of the request.
      3. Where the information submitted to the Board is not sufficient to adequately assess the Board's jurisdiction and/or the particular variances that are sought, the Board will notify the applicant and ANF, and allow the applicant additional time, not to exceed 10 business days, to supplement its application with additional information for the Board's review. The Board will, within 30 calendar days of receipt of the supplemented application, review and rule upon the request and provide notification of its ruling pursuant to section IV, below.
      4. If the nature of the variance sought is an extension in the time for bringing a project into full compliance with 521 C.M.R. (hereafter referred to as a "time variance") and if such a time variance is granted, the Board shall track the status of the project's compliance with 521 C.M.R. in a manner consistent with the Board's standard practices.
    2. Executive Office for Administration and Finance
      1. The Secretary of ANF or her designee shall submit one or more reports to the Board listing all ARRA-funded projects subject to this MOU that might fall within the Board's jurisdiction, including but not limited to those projects for which variances from 521 C.M.R. are sought.
      2. Such reports shall include the following information concerning each listed project:
        1. A description of the project;
        2. The anticipated cost of the work to be performed;
        3. The assessed value for publicly or privately owned buildings or facilities to be improved or the Capital Asset Management Information System (CAMIS) value for state owned buildings or facilities to be improved;
        4. A description of the access requirements that the improvements will trigger pursuant to 521 C.M.R.; and
        5. Whether a variance is being sought and, if so, the nature and scope of the requested variance.
      3. To ensure the completion of required accessibility features that are the subject of time variances, the Secretary of ANF or her designee, in consultation with the Board, shall establish a process for determining the amount of funding needed to design and construct all such features. Consistent with that process, a committed source of funds shall be identified and set aside for each and every time variance granted in an amount sufficient to permit completion of all required accessibility features within the time allotted by the Board's variance and any other applicable deadlines.
  2. Parties' Intent

    Nothing in this MOU is to be interpreted as an intent on the part of the parties to circumvent the AAB's Rules and Regulations, 521 C.M.R. or any other state or federal law. The parties remain committed to ensuring full compliance with the accessibility requirements of state and federal law, including 521 CMR, the Americans with Disabilities Act, and any other applicable law, on ARRA-funded projects.
  3. Modifications/ Amendments to this MOU

    Modifications or amendments to this MOU must be in writing and duly executed by both parties to be effective.
  4. Severability

    If any part of this MOU is determined to be invalid, illegal or unenforceable, such determination shall not affect the validity, legality or enforceability of any other part of the Agreement and the remaining parts of this MOU shall be enforced as if such invalid, illegal or unenforceable part were not contained herein.
  5. Notice

    Whenever, by the terms of this instrument, notice may or is to be given either to the AAB or ANF, such notice shall be deemed to have been given, if in writing and either delivered by hand or by U.S. mail to the following addresses:

To the AAB

To ANF

Thomas P. Hopkins
Executive Director
Architectural Access Board
One Ashburton Place
Room 1310
Boston, MA 02108

Secretary Leslie Kirwan
Executive Office for Administration and Finance
State House, Room 373
24 Beacon Street
Boston, MA 02133

  1. Termination of Agreement

    This agreement shall terminate upon the completion of all ARRA-funded projects that are subject to this MOU.
  2. Entire Agreement

    This MOU contains all the terms and conditions agreed upon by the parties. No other understanding, oral or otherwise regarding the subject matter of the MOU shall be deemed to exist or bind either of the parties hereto.

The undersigned hereby execute the Memorandum of Understanding on behalf of the AAB and ANF.

DATED this 23rd day of March, 2009.

Undersecretary Jay Gonzalez
Executive Office for Administration and Finance

Gerald J. LeBlanc, Chair
On Behalf of the Architectural Access Board