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HomeMy Public PortalAbout05-08-2012 Wells Avenue Licensing Agreement final LICENSE AGREEMENT This LICENSE AGREEMENT (this "License") is executed this day of May, 2012 by and between the City known as the Town of Watertown, acting by and through its Town Manager, with an address of 149 Main Street, Watertown, Massachusetts 02472 (the "Town"), and RBS Citizens,N.A., a national banking association, formerly known as Citizens Bank,N.A., successor by merger to Citizens Bank of Massachusetts, with an address of 480 Jefferson Boulevard, Warwick, Rhode Island 02886 ("Licensor"). Whereas, Licensor is the lessee under a lease with Inland American CFG Portfolio, L.L.C. ("Owner"), dated as of June 14, 2007 (the"Lease") for certain property located at 631 Mount Auburn Street, Watertown, Massachusetts, more particularly described at Exhibit A(the "Property"). Whereras, the Town has licensed a portion of the Property, more particularly described at Exhibit B (the "License Premises"), under an Indenture with Union Market National Bank of Watertown, dated August 15, 1960 (the"Indenture"). Whereas, Town desires to continue to license the License Premises from the Licensor for the purpose and use described in Section I below, and on the terms and conditions set forth in this License. Now, therefore, the Licensor hereby grants such entry and license to use the License Premises to the Town, subject to the following terms and conditions: I. USE, PURPOSE, TERM Subject to the terms and conditions of the Lease, entry and use are specifically granted to the Town, its agents, representatives, employees, invitees, permitees and licensees for the purposes of parking of passenger vehicles on the License Premises and for all purposes and uses incidental thereto, including, but not limited to, the installation of meters and other parking control devices to assess parking charges for use of the License Premises. No parking of municipal vehicles or overnight storage of vehicles (except as expressly set forth in the following sentence) shall be permitted on the License Premises. Overnight parking of privately owned passenger vehicles shall be permitted throughout the Term of this License. Any parking meters installed on the License Premises shall allow for a maximum parking period of two hours and shall be in effect from 8:00 am through 6:00 pm Monday through Saturday. Such entry and use by the Town, its agents, representatives, employees, invitees, permittees, and licensees, shall be exercised from the date of the execution of this License and shall continue until the earlier to occur of(a) the expiration or earlier termination of the Lease or (b)the termination of this License by either party in accordance with the provisions of Section VIII below. Such entry and use shall be non-exclusive and shall allow for the entry of Licensor and the Owner and their agents, representatives, employees, invitees,permittees, licensees and #20917041 v6 customers onto the License Premises, and shall be further limited by the provisions of Section VII below. II. CONSIDERATION The consideration for this License shall be a fee of$1.00, the payment of all costs and expenses associated with the exercise of the rights granted hereunder, together with the observation and performance by the Town of all the obligations and covenants set forth within this License to the reasonable satisfaction of the Licensor. III. INSURANCE The Town shall, at its sole expense, maintain commercial general liability insurance including broad form contractual liability coverage with minimum combined single limits of $5,000,000 for injury to or death of one or more persons or damage to or destruction of property in any one occurrence and statutory worker's compensation insurance, naming the Licensor and the Owner as additional named insureds and protecting the Licensor and Owner from and against any and all claims, damages, costs, expenses,penalties, losses, liabilities, obligations, injuries, etc., to the extent arising from or in connection with the Town's use and maintenance of the License Premises as permitted under Section II above ("Insurance Coverage"). The Town shall be responsible for any and all deductibles associated with the Insurance Coverage. The Insurance Coverage shall be procured from an insurance company with at least an A+rating by A.M. Best Company. The Insurance Coverage shall be deemed primary and non-contributing with respect to any insurance maintained by the Licensor and shall provide for thirty(30) days prior written notice to Licensor and to each additional named insured in the event of cancellation, expiration, termination, modification or change. A copy of the insurance policy and original Certificate of Insurance evidencing the Insurance Coverage, shall be delivered to the Licensor upon the execution of the License by the Town and upon each anniversary of such date during the Term of this License. The Licensor shall have the right to review and approve the Insurance Coverage proposed by the Town, which approval shall not be unreasonably withheld or delayed. The Town shall renew and maintain the Insurance Coverage,with commercially acceptable increases to the agreed upon limits, during the entire period of the Town's use of the License Premises. IV. INDEMNIFICATION Town and its agents, representatives and employees, to the extent not prohibited by law, shall indemnify and save harmless Licensor and Owner from and against any and all claims, demands, suits, actions, costs, and judgments, whatsoever, including reasonable attorneys' fees, which may be imposed upon, incurred by, or asserted against the Licensor or the Owner by reason of(a) any failure on the part of the Town, its agents, representatives and employees to perform or comply with any provisions of this License, or(b) for the death, injury or property damage suffered by any person on account of or based upon the act, omission, fault, negligence or misconduct of the Licensee, its agents, representatives, and employees. The obligations set forth in this Section IV shall survive the expiration or earlier termination of this License. #20917041 v6 V. RISK OF LOSS Town agrees that it shall use and occupy the License Premises at its own risk, and neither the Licensor nor the Owner shall be liable to Town for any injury or death to persons entering the License Premises pursuant to the License, or loss or damage to vehicles, equipment or other personal property of any nature whatsoever(whether on foot, in vehicle or otherwise) of the Town, or of anyone claiming by or through the Town, that are brought upon the License Premises pursuant to the License, except if such injury, death, loss or damages is caused by the willful act or gross negligence of the Licensor, the Owner, or their employees, agents, contractors or invitees. VI. CONDITION OF THE PREMISES Town acknowledges and agrees that it accepts the License Premises in"as is" condition for the purpose of this License, and that Licensor has made no representation or warranty regarding the fitness of the License Premises, except as expressly stated herein. VII. CONDUCT; MAINTENANCE AND REPAIR During the exercise of the rights hereby granted, the Town shall at all times conduct itself so as not to unreasonably interfere with the operations of the Licensor, and shall procure all necessary permits before undertaking any work on the License Premises, and shall cause all such work to be performed in a good and first-class workmanlike manner and in accordance with the requirements of insurers, employing new materials of prime quality, and shall be undertaken in compliance with all applicable local, state, and federal ordinances, rules, regulations, statutes and by-laws. The Town agrees, on or before July 31, 2012, at the Town's sole cost and expense, to complete the construction of all of the improvements to the License Premises as set forth in Exhibit D attached hereto (the"Initial Improvements"). The Town, as part of the Initial Improvements, and at the Town's sole cost and expense, agrees to repair any asphalt areas on the License Premises and on the Licensor's remaining portion of the Property, to restripe the Licensor's remaining portion of the Property and to maintain the same number of Licensor's existing parking spaces on the Licensor's remaining portion of the Property(i.e., 24 parking spaces). The Town acknowledges and agrees that it is installing an oil, water and particle separator in the License Premises (the "Oil/Water Separator"). The Town agrees to install, operate and maintain such Oil/Water Separator in compliance with all applicable laws and in accordance with best industry practices throughout the term of this License. The Town shall, to the extent not prohibited by law, indemnify and save harmless Licensor and Owner from and against any and all claims, demands, suits, actions, costs, and judgments, whatsoever, including reasonable attorneys' fees, which may be imposed upon, incurred by, or asserted against the Licensor or the Owner by reason of(a) any failure on the part of the Town, its agents, representatives and employees to install, operate and maintain the Oil/Water Separator in accordance with all applicable laws and best industry practices throughout the Term of the License. The provisions of this paragraph shall survive the termination of this License. The Town shall be responsible for clearing of snow and sanding as well as trash removal, and for necessary maintenance and repairs. #20917041 v6 In addition to the Initial Improvements, during the term of this License, Town may maintain and make any repairs, alterations, additions or improvements to the License Premises, including, but not limited to,paving, which are consistent with Section I hereof. All such future maintenance, repairs, alterations, additions or improvements shall be subject to Licensor's prior written approval, which approval shall not be unreasonably withheld or delayed, and shall be undertaken in such manner as to not disrupt business or access to Licensor's remaining parking lot on the Property, and shall be staged to keep the remaining parking lot open for bank customers VIII. TERMINATION and REVOCATION This License shall be revocable by either party upon written notice of revocation at least six (6)months prior to the termination date stated within said notice. In the event that this License is terminated either by the expiration or sooner termination of the Lease or by revocation of either party pursuant to this Section, then the Town, at its own expense, shall leave all improvements made to the License Premises in good repair,which improvements shall become the property of the Licensor or the Owner as the case may be, and shall remove all its parking meters and control apparatus, signage and vehicles, and property from the License Premises, and restore the License Premises to its original condition as at the commencement of this License as improved by the construction of the Initial Improvements as set forth in Exhibit D, as nearly as possible. This obligation shall survive the termination of this License. IX. RELEASE and WAIVER; ESTOPPEL Licensor and Owner each waive, release and forever discharge the Town, its successors and assigns, from all debt and any rent which may be owed under the Indenture, from the effective date of the Indenture to the date of this License. Licensor and Owner further state that, to the best of Licensor's and Owner's actual knowledge and belief, Town has maintained the License Premises in a manner satisfactory to the Licensor and the Owner. Licensor and Owner are satisfied with the present condition of the License Premises and the state of maintenance of the same and have no claim against the Town with respect to the same, under the Indenture or otherwise. Notwithstanding the foregoing, the Town agrees to continue, to the extent not prohibited by law, to indemnify and save harmless Licensor and Owner from and against any claims, demands, suits, actions, costs, and judgments, whatsoever, including reasonable attorneys' fees which may be imposed upon, incurred by, or asserted against the Licensor or the Owner by reason of (a) any failure on the part of the Town or its agents, representatives or employees to perform their obligations under the Indenture or(b) for the death, injury or property damage suffered by any person pursuant to the Indenture through the date hereof. #20917041 v6 X. SUPERCEDING OF INDENTURE Except as expressly set forth herein, this License shall supersede the terms and provisions of the Indenture the terms and provisions of which shall be null, void and of no further legal effect. XI. MODIFICATIONS and AMENDMENTS Modifications or amendments to this License shall be in writing and duly executed by both parties hereto to be effective. XII. NOTICE For purposes of this License, the parties shall be deemed duly notified in accordance with the terms and provisions hereof, if written notices are mailed to the following addresses: Town: Town of Watertown 149 Main Street Watertown, MA 02472 Attention: Town Manager With a Copy to: Mark R. Reich, Esq. Kopelman and Paige, P.C. 101 Arch Street, 12th Floor Boston, MA 02110 Licensor: RBS Citizens Business Services 4221 Pearl Road Cleveland, OH 44109 Mail Code: OHP 100 Attn: Monica T. Wilson With a Copy to: RBS Citizens,N.A. 910 Douglas Pike Smithfield, RI 02917 Mail Code: RSD 370 Attn: Legal Counsel - Property Services With a Copy to: RBS Citizens,N.A. c/o JLL 525 William Penn Way, 20th Floor Pittsburgh, PA 15259 #20917041 v6 With a Copy to: David Howe Vice President-Property Services RBS Citizens Business Services 36 Washington St. - Mail Code MQA 210 Norwell, MA 02061 Phone 781-681-5610 Fax 781-681-5604 E-Mail david.howe@rbscitizens.com With a Copy to: David Barry Connolly, Esq. Hinckley Allen & Snyder, LLP 28 State Street Boston, MA 02109 These addresses are subject to change, and the parties hereto agree to inform each other of such changes as soon as practicable. XIII. NO ESTATE CREATED This License shall not be construed as creating or vesting in the Town any estate in the License Premises, but only the limited right of possession as hereinabove stated. XIV. EXHIBITS and ATTACHMENTS Any and all exhibits and attachments referenced herein or attached hereto, are duly incorporated within this agreement. XV. SURVIVAL of TERMS and PROVISIONS All appropriate terms and provisions relating to the restoration of the License Premises affected hereby, shall survive the termination of this License including but not limited to the provisions of Sections IV, V, VII, VIII, IX and X. IN WITNESS WHEREOF, the parties hereto have caused this License Agreement to be executed on this day of May, 2012 TOWN OF WATERTOWN RBS CITIZENS,N.A., a national banking association formerly known as Citizens Bank,NA, successor by merger to Citizens Bank of Massachusetts By: By: Michael J. Driscoll Name: Town Manager Title: #20917041 v6 Exhibit A Property Parcel I One lot of land situated in Watertown, Middlesex County, Massachusetts, and being Lot eight (8) on a plan entitled "Revision No. 1 of Northern Part of Section One of Vineyard Lot, Watertown, Mass." dated January 18, 1926, T.A. Anderson, Surveyor, recorded in Book of Plans 370 Plan 5, bounded and described as follows: Northwesterly by the easterly line of Bigelow Avenue (new location), fifty (50) feet; Northeasterly by Lot 7 as shown on said plan, fifty and 50/100 (50.50) feet; Southeasterly by the northwesterly line of a 25 foot passageway, marked on said plan "Right of Way", thirty-five (35) feet; About Southerly by Lot 9, as shown on said plan, fifty and 50/100 (50.50) feet. Containing 2140 square feet. Together with a right of way as appurtenant to said lot, in common with others entitled thereto, over the passageway twenty-five (25) feet wide as shown on said plan and marked "Right of Way", a part of one of the boundary lines of said passageway being shown by a dotted line. Parcel 11 A certain parcel of land situated on Wells Avenue in Watertown, Middlesex County, Massachusetts, 'shown as Lots #4, #6 and #11 on "Plan of Land in Watertown, Mass, belonging to the East Watertown Realty Co." dated September 8, 1943, W. Dolbier, Surv., recorded with Middlesex South District Deeds, Book 6708, Page 1 and bounded and described as follows: Northeasterly by land now or formerly of George J. Gootman and Harry Gootman, Trustees, fifty and 12/100 (50.12) feet; Southeasterly by said land of said Gootmans, seventy-four and 13/100 (74.13) feet; Northerly by land of said Gootmans, two hundred twenty-nine and 3/100 (229.03) feet; Easterly on an arc as shown on said plan by land now or formerly of Watertown Cooperative Bank, seventy-one and 42/100 (71.42) feet; Southerly by said Wells Avenue, three hundred one and 42/100 (301.42) feet; Westerly by land now or formerly of Thomas A. Phillips, sixty-eight and 71/100 (68.71) feet; #20917041 v6 Northwesterly on an arc as shown on said plan by said land now or formerly of the Union Market National Bank, thirty-five (35) feet and northwesterly by land now or formerly of Carmela Padula, seventy-two and 95/100 (72.95) feet. Said parcel containing in said Lot #4, 16,257 square feet of land: in said Lot #6, 3,754 square feet of land; and in said Lot #11, 4,195 square feet of land: all more or less, be any or all of said measurements, more or less and however otherwise said premises may be bounded and described. There is excepted from the above-described premises, those portions of the property shown as Lot 13 on "Plan of Land in Watertown, Massachusetts" dated May 11, 1946 by Cook and Sullivan Engineers recorded with Middlesex South District Deeds as Plan No. 923 of 1946, conveyed to Carmela Padula by the Union Market National Bank of Watertown by deed dated July 1, 1946 and recorded in Book 7011, Page 251, and Lots 12 and 17 on the aforesaid plan conveyed to George J. Gootman and Harry J. Gootman by the Union Market National Bank of Watertown by deed dated July 1, 1946 and recorded in Book 7011, Page 253. Being the same premises conveyed by Deed dated December 9, 1996 and recorded with the Middlesex South Registry of Deeds at Book 26897, Page 54. #20917041 0 Exhibit B License Premises A portion of Parcel II described in a Quitclaim Deed from Citizens Bank of Massachusetts to Inland American CFG Portfolio, L.L.C., dated June 14, 2007, recorded with the Middlesex South District Registry of Deeds in Book 49668, Page 286, as shown within the dotted line in the area noted as "Proposed Extensive Pavement Patching"on the plan entitled "Citizens Bank Parcel"dated July 20, 2011 prepared by World Tech Engineering attached hereto as Exhibit B-1. #20917041 v6 Exhibit B-1 [INSERT PLAN] #20917041 v6 Exhibit C INDENTURE INSERT EXECUTED COPY OF INDENTURE #20917041 v6 Exhibit D INITIAL IMPROVEMENTS • Construct the improvements necessary to bring the parking facility into compliance with respect to the drainage system and to provide improved access to the parking areas while also providing safety improvements to the public sidewalk and esthetic enhancements to the area. • Installation of curbing and sidewalk in the public way portion of this project first. As this portion has numerous control measures such as ADA, curb reveal, and proper sidewalk dimension in around trees,parking meters, and a fire hydrant. The improvement in the parking area will then easily transition from the public owned sidewalk which will then establish control for the rest of the area. • Installation of a new gas and particle separator for the drain system. This separator shall be connected to the town system on Wells Ave. • Installation of a wooden guardrail between the public sidewalk and the parking area. A wooden guardrail was chosen to prevent motor vehicles from hanging over the sidewalk without the need for concrete bumpers in the parking lot which create numerous problems with respect to snow plowing. • Perform selective asphalt repairs to include a six foot area off the newly installed sidewalk parallel with the new sidewalk for the entire length of the parking area to provide the proper transition in elevation between the parking area and the proposed sidewalk elevation. We also propose to perform various selective asphalt repairs in the parking area itself as needed. This task can be agreed upon through field visits with the appropriate property owners or managers. • Perform/install re-striping of the entire parking area. • Remove and dispose of existing concrete parking bumpers from the area. The wooden guardrail will act as a bumper replacement and yield itself to improved and more effective snow and sweeping maintenance of the area. • Construct all improvements shown on the plan attached to this License as Exhibit B-1. #20917041 v6