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HomeMy Public PortalAbout2020-08-11 DRAINAGE ORDER-AGR-LTR KP LAW 101 Arch 5trcct,Boston,MA 021 10 Tel.617.556.0007 1 Fax.617.654.1735 Ybe Leader in Public Sector Law www.k-plaw.coni September 1, 2020 Katharine Lord Klein kklein@k-plaw.com BY ELECTRONIC TRANSMISSION Mr. Michael J. Driscoll Town Manager Watertown Administration Building 149 Main Street Watertown, MA 02472 Re: Arsenal Park Drainale Easement Dear Mr. Driscoll: I am writing to you regarding the proposed Drainage Easement Agreement(the "Agreement") from the Arsenal Yard Primary Condominium Trust(the "Condominium Trust") and Arsenal Yards Holding LLC ("AY Holding")to the Town of Watertown for a drainage easement for the purpose of improving the drainage at Arsenal Park(the "Park"). AY Holding is developing a mixed use condominium(the "Condominium") at 485 Arsenal Street. The Town is improving the Park, including the construction of drainage facilities which will require a connection to a drainage system to accommodate unusually heavy rainfall events by conveying such runoff to the Town municipal storm sewer system. AY Holding is constructing a stormwater management and detention system on the land of the Condominium, and, under the Agreement, the Town has the right to connect a portion of the Park drainage system to the AY Holding drainage system. The Office of Community Development &Planning supports the Agreement conveying to the Town the right to connect to the drainage system on the property of the Condominium. Town Council approval of the Agreement is required, as well as an order authorizing you to execute the Agreement. I recommend approval by the Town Council of the proposed Agreement granting the drainage easement and enabling you to execute the Agreement on behalf of the Town. Please contact Mark Reich or me with any questions regarding this matter. Very truly yours, Katharine Lord Klein KLK/caa Enc. cc: Office of Community Development&Planning 728389/WATWO160 KP Law, P.C. Boston • Hyannis • Lenox • Northampton • Worcester Watertown Town Council Administration Building 149 Main Street 41 Watertown, MA 02472 ELECTED OFFICIALS: Phone: 617-972-6470 Mark S.Sideris, ORDER# 71 R—2020—71 Council President Vincent J.Piccirilli,Jr., Vice President& AN ORDER RELATIVE TO THE ACCEPTANCE OF A DRAINAGE District C Councilor EASEMENT FOR THE BENEFIT OF ARSENAL PARK AND Caroline Bays AUTHORIZING THE TOWN MANAGER TO EXECUTE A DRAINAGE Councilor At Large EASEMENT AGREEMENT ON BEHALF OF THE TOWN Anthony J.Donato, Councilor At Large John G.Gannon WHEREAS, the Town owns property known as Arsenal Park, located off of Councilor At Large Greenough Boulevard, which the Town intends to renovate and improve for recreational use by the public; and Anthony Palomba, Councilor At Large WHEREAS, the improvements at Arsenal Park will include the construction of Angeline B.Kounelis, certain drainage facilities which are intended to infiltrate stormwater runoff into the District A Councilor ground, but which will also require a connection to a drainage system in order to Lisa J.Feltner, accommodate unusually heavy rainfall events by conveying such runoff to the District B Councilor municipal storm sewer system; and Kenneth M.Woodland, District D Councilor WHEREAS,Arsenal Yards Holding LLC is developing the Arsenal Yards Primary Condominium, which includes as a common element certain land situated at 485 Arsenal Street; and WHEREAS, Arsenal Yards Holding LLC is in the process of constructing a stormwater management and detention system within the Condominium land; and WHEREAS, the Arsenal Yards Primary Condominium Trust and Arsenal Yards Holding LLC have agreed to grant an easement to the Town to connect a portion of the Arsenal Park drainage system to the drainage system being constructed at the Condominium for the conveyance of stormwater from a portion of Arsenal Park in unusual rainfall events. NOW THEREFORE BE IT ORDERED: That,the Town Council agrees that the Town shall accept a permanent drainage easement from the Arsenal Yards Primary Condominium Trust and Arsenal Yards Holding LLC for the purpose of connecting to the drainage system on the land of the Arsenal Yards Primary Condominium for the conveyance of stormwater from a portion of Arsenal Park in unusual rain events. AND FURTHER, that the Town Council hereby authorizes the Town Manager to execute a Drainage Easement Agreement on behalf of the Town. Council Member I hereby certify that at a regular meeting of the Town Council for which a quorum was present, the above Order was adopted by a vote of_ for, _ against and _ present on August 11, 2020. Marilyn W. Pronovost, Council Clerk Mark S. Sideris, Council President RECORDING REQUESTED BY AND WHEN RECORDED RETURN TO: DRAINAGE EASEMENT AGREEMENT THIS DRAINAGE EASEMENT AGREEMENT (this "Agreement") is made as of this day of , 2020 by and among WILLIAM P. McQUILLAN, THOMAS V. WILDER and DAVID J. MALLEN (collectively, the "Primary Trustees"), as Primary Trustees of the Arsenal Yards Primary Condominium Trust created pursuant to a certain Declaration of Trust of the Arsenal Yards Primary Condominium Trust, dated as of June 5, 2018 and recorded with Middlesex South Registry of Deeds in Book 71113, Page 410 (as the same may have been or is hereafter amended, supplemented or modified, the "Condominium Trust"), and not individually, and ARSENAL YARDS HOLDING LLC, a Delaware limited liability company ("AY Holding"), which is the Declarant of the Arsenal Yards Primary Condominium (the "Condominium") created by that certain Amended and Restated Master Deed of the Arsenal Yards Primary Condominium, dated as of June 5, 2018 and recorded with Middlesex South Deeds Registry of Deeds in Book 71113, Page 277 (as the same may have been or is hereafter amended, supplemented or modified, the "Master Deed") (the Primary Trustees and AY Holding are hereinafter referred to, collectively, as "Grantor"), and THE CITY KNOWN AS THE TOWN OF WATERTOWN, a municipality of The Commonwealth of Massachusetts ("Grantee"). Grantor and Grantee are hereinafter sometimes referred to, separately, as a "Party" and collectively, as the "Parties". WHEREAS, the Condominium includes as a common element certain land situated at 485 Arsenal Street in Watertown, Massachusetts (the "AY Project Site") known as "Arsenal Yards", which is currently being developed by AY Holding pursuant to the Master Deed as a mixed-use project including residential, commercial, office, laboratory, and retail buildings and spaces, together with related parking facilities, utility infrastructure and other related improvements (collectively, the "AY Project"); WHEREAS, Grantee owns property adjacent to the AY Project Site known as "Arsenal Park", consisting of approximately 13.7 acres of land off of Greenough Boulevard ("Grantee's Land"), which Grantee intends to renovate and improve for use as a park to provide open space and recreational areas for use by the public (the "Park"); 00980997.4 WHEREAS, the construction of the Park will include the construction of certain drainage facilities which are intended to infiltrate stormwater runoff into the ground, but which will also require a connection to a drainage system in order to accommodate unusually heavy rainfall events by conveying such runoff to the Watertown municipal storm sewer system; WHEREAS, AY Holding is in the process of constructing a stormwater management and detention system within the Condominium Land as part of the development of the AY Project, which system includes a series of catch basins, manholes, underground pipes, an underground detention tank, and related equipment and appurtenances (collectively, the "AY Project Drainage System"); WHEREAS, Grantee has requested and Grantor has agreed, to permit Grantee to connect a portion of the drainage system being constructed as part of the Park (the "Park Drainage System") to the AY Project Drainage System, and thereafter to use the AY Project Drainage System for the conveyance of stormwater from a portion of the Park in unusual rainfall events, subject to the terms and conditions set forth in this Agreement. NOW, THEREFORE, in consideration of the mutual covenants and agreements herein contained, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Grantor and Grantee hereby covenant and agree as follows: 1. Grant of Drainage Easement by Grantor to Grantee. Grantor hereby grants to Grantee, for the benefit of and as appurtenant to Grantee's Land, the perpetual non-exclusive right and easement, in common with Grantor and their tenants, and others to whom Grantor may hereinafter grant similar rights, to construct a connection to, and thereafter to use, those portions of the AY Project Drainage System which are situated beneath the surface of the portion of the AY Project Site shown on Exhibit A attached hereto and made a part hereof, for the purpose of the conveyance of surface water runoff drainage from those portions of the Park Drainage System which are situated on or beneath the surface of the portion of the Grantee's Land shown on Exhibit B attached hereto and made a part hereof. Grantee shall construct such connection to the AY Project Drainage System in accordance with the provisions of this Agreement. Grantee hereby accepts the AY Project Drainage System for purposes of this Agreement in its "as is, with all faults" condition as of the date on which Grantee constructs such connection to the AY Project Drainage System pursuant to this Agreement. The right and easement granted hereby is limited to the conveyance of stormwater runoff collected by the catch basins and other structures situated on Grantee's Land within the area shown on Exhibit B attached hereto, and shall not include or permit the transmission of drainage from any other portion of Grantee's Land or the Park Drainage System into the AY Project Drainage System. In no event shall Grantee suffer or permit the drainage flow into the AY Project Drainage System hereunder to exceed the then- available capacity of the AY Project Drainage System to accept such flow in accordance with all applicable Legal Requirements and good engineering practices. 2. Permits and Compliance with Law. Grantee shall be responsible, at its sole cost 00980997.4 2 and expense, for (i) obtaining and maintaining in force any and all permits, licenses, consents and governmental approvals (if any) (collectively, "Permits") required from time to time by any laws, statutes, ordinances, codes, bylaws, orders, rules, regulations, restrictions and decrees from time to time in force and applicable to the construction of the connection between the Park Drainage System and the AY Project Drainage System or to the discharge of drainage from Grantee's Land through the Park Drainage System into the AY Project Drainage System (collectively, "Legal Requirements"), and (ii) complying with the terms of all Legal Requirements applicable to, and all Permits (if any) issued in connection with, the construction of the connection between the Park Drainage System and the AY Project Drainage System or the drainage discharge from Grantee's Land through the Park Drainage System into the AY Project Drainage System. Grantee shall provide copies of all such Permits (or a statement that no such Permits are then currently required under applicable Legal Requirements) to Grantor promptly following written request therefor by Grantor. 3. Construction of Connection. Grantee shall construct the connection between the Park Drainage System and the AY Project Drainage System, at its sole cost and expense, at the location shown on Exhibit A attached hereto, subject to the following provisions: (a) Prior to commencing any construction pursuant to this Agreement, Grantee shall obtain the written approval by Grantor (which approval shall not be unreasonably withheld, delayed or conditioned) of the plans and specifications, including associated drainage calculations, for such connection (the "Approved Construction Plans"), which plans, specifications and drainage calculations shall be prepared by, and stamped by, a professional engineer in good standing in the Commonwealth of Massachusetts; (b) Grantee shall schedule such construction work in coordination with Grantor so as not to adversely impact or affect the ongoing construction of the "River Green Project"by AY Holding; (c) Grantee shall perform such construction in a good and workerlike manner, in accordance with the Approved Construction Plans, and in compliance with all Permits, applicable Legal Requirements and matters of record title affecting the Condominium Land. Once Grantee commences such construction, Grantee shall pursue the same diligently to completion (subject to unavoidable delays as described in Paragraph 15 below, written notice of which has been given to Grantor); (d) Grantee shall give written notice to Grantor at least seven (7) days prior to the commencement of such construction work; and (e) The provisions of Paragraph 5 below shall apply to the construction by Grantee of the connection to the AY Project Drainage System. 4. Cleaning, Maintenance and Repair by Grantee. (a) Prior to the completion by Grantee of construction of the connection 00980997.4 3 between the Park Drainage System and the AY Project Drainage System, Grantee shall obtain Grantor's written approval (which approval shall not be unreasonably withheld, delayed or conditioned) of a written operations and maintenance plan providing for the periodic (but not less frequently than annually) inspection, cleaning and removal of debris of and from the catch basins and other structures, and other portions of the Park Drainage System, which are connected to the AY Project Drainage System (including, without limitation, the connection itself) ("Grantee's O&M Plan"). Grantee shall be solely responsible, at its sole cost and expense, for performing the inspections, cleaning and removal of debris in accordance with the approved Grantee's O&M Plan. In addition, Grantee shall be responsible, at its sole cost and expense, for performing all maintenance, repair and replacement to such catch basins, other structures and other portions of the Park Drainage System which are connected to the AY Project Drainage System (including, without limitation, the connection itself) so as to maintain the same in good working order and in compliance with all Legal Requirements and to prevent damage to the AY Project Drainage System caused by the condition of the Park Drainage System. Grantee shall provide to Grantor written confirmation of the date(s) of the most recent inspection, cleaning and debris removal performed by Grantee in accordance with the approved Grantee's O&M Plan promptly following written request for such confirmation by Grantor. (b) In the event that Grantee fails to perform such inspection, cleaning or debris removal in accordance with the approved Grantee's O&M Plan, or fails to perform such maintenance, repair or replacement as provided in subparagraph 4(a) above, or fails to provide such written confirmation of the date(s) of the most recent inspection, cleaning and debris removal performed by Grantee, and in any such case such failure continues for twenty (20) days after written notice thereof from Grantor to Grantee, then Grantor shall have the right, in its sole and absolute discretion, but not the obligation, to perform such inspection, cleaning and debris removal, or such maintenance, repair or replacement (and for such purposes, shall have the right to enter upon Grantee's Land with vehicles and personnel), in which case Grantee shall reimburse Grantor for the actual costs and expenses incurred by Grantor in doing so within thirty (30) days of delivery by Grantor to Grantee of a reasonably detailed statement of such costs and expenses. Notwithstanding the preceding provisions of this subparagraph (b), Grantor shall have the right to perform such inspection, cleaning, debris removal, maintenance, repair or replacement immediately upon giving notice (which may be verbal) to Grantee if necessary to prevent damage to, or interference with the ability of Grantor to use, the AY Project Drainage System by reason of such failure on the part of Grantee. (c) Grantee shall have no right or obligation to perform or to pay for the performance of any inspection, cleaning, maintenance, repair or replacement of the AY Project Drainage System (which shall be the obligation of Grantor, at its sole cost and expense), except that if such cleaning, maintenance, repair or replacement of any portion of the AY Project Drainage System is necessitated by reason of the act or negligence of Grantee, or any breach by Grantee of its obligations under this Agreement, then Grantee shall reimburse Grantor for the actual costs and expenses incurred by Grantor in doing so within thirty (30) days of delivery by Grantor to Grantee of a reasonably detailed statement of such costs and expenses. 00980997.4 4 (d) The rights of Grantor reserved in subparagraphs 4(a) — (c) above may be exercised by AY Holding on behalf of Grantor. (e) The provisions of Paragraph 5 below shall apply to the inspection, cleaning, removal of debris, maintenance, repair and replacement by Grantee to be performed pursuant to this Paragraph 4. 5. General. All construction (including, without limitation, the construction of the connection between the Park Drainage System and the AY Project Drainage System), installation, maintenance, repair and replacement performed pursuant to this Agreement shall be subject to the following conditions: (a) Grantor hereby grants to Grantee the right of access, by foot and motor vehicle (including equipment) for such temporary periods as may be required for the initial construction of the connection between the Park Drainage System and the AY Project Drainage System, and thereafter for the periodic performance of inspections, maintenance, repair and removal of such connection (or portions thereof) as may be required by the provisions of this Agreement. Such right of access shall not include the right to store materials or equipment on any portion of the AY Project Site (all of which materials and equipment shall be stored on Grantee's Land while any such work is being performed); (b) In order to enable Grantor to exercise its rights under subparagraph 4(b) above, Grantee hereby grants to Grantor the non-exclusive right and easement, in common with Grantee and others currently or hereafter entitled thereto, to access and use (for the performance of work, storage of materials or equipment, or otherwise) by foot and by vehicle or equipment those portions of Grantee's Land as may be reasonably necessary for the exercise of such rights; (c) All such work shall be performed in a good and workerlike manner and in compliance with all applicable Legal Requirements and all matters of record title, following the issuance of all Permits required for such work by applicable Legal Requirements, and shall be performed diligently and continuously to completion (subject to unavoidable delays as described in Paragraph 15 below, written notice of which has been given to the other Party) and in a manner so as to minimize, to the extent reasonably practicable, interference with the use of the AY Project Drainage System by all parties entitled to the use thereof. After performing any work hereunder, the Parry performing such work shall promptly restore and repair the affected area substantially to its former condition to the extent reasonably practicable, including, without limitation, the restoration and repair of any landscaped, seeded, graded, paved or other area which has been damaged, destroyed or disturbed as a result of such work, and the cost of such restoration and repair shall be considered to be part of the cost of such work; (d) Each Party shall give written notice to the other Party at least seven (7) days prior to the commencement of any work on the land of such other Party pursuant to this Agreement (except that in the event of emergency, only such notice (if any) as is practicable under the circumstances need be given); and 00980997.4 5 (e) All costs and expenses to be reimbursed by Grantee to Grantor which are not paid when due hereunder shall bear interest from the date such payment was due at an annual rate equal to the lesser of(i) twelve (12%) percent, and (ii) the maximum rate of interest allowed by law,until paid in full. 6. Insurance. During all times that Grantee is performing any construction or other work with respect to the connection between the Park Drainage System and the AY Project Drainage System, Grantee shall maintain in full force and effect, with companies duly licensed by The Commonwealth of Massachusetts, the following insurance coverages: (i) commercial general liability insurance on an occurrence basis, with limits not less than Two Million Dollars ($2,000,000.00) combined single limit per occurrence, Five Million Dollars($5,000,000.00) general aggregate, Five Million Dollars ($5,000,000.00) products/completed operations aggregate, for bodily injury, personal injury and property damage, and shall include (x) liability of Grantee assumed under contract and (y) liability imputed to Grantee through the activities of independent contractors, including subcontractors; (ii) automobile liability insurance written on an occurrence basis, covering owned, non-owned, leased and hired vehicles, with limits of not less than One Million Dollars($1,000,000.00) combined single limit per occurrence for bodily injury and property damage; and (iii) workers' compensation insurance in the amount and with such coverages as are required by statute. At all other times Grantee shall maintain in full force and effect, with companies duly licensed by The Commonwealth of Massachusetts, commercial general liability insurance, including contractual liability coverage, with a combined single limit of not less than Two Million Dollars ($2,000,000.00) for injury or death or property damage (which limit shall be subject to increase by Grantor every five (5) calendar years following the date of this Agreement by a reasonable amount in light of the risks posed to Grantor by Grantee's exercise of its rights hereunder). Grantee shall name Grantor as an additional insured on the commercial general liability insurance policy and, when required to be maintained pursuant to this Paragraph, also on the automobile liability insurance policy. All insurance policies maintained by Grantee shall contain a clause waiving the right of subrogation in favor of Grantor. Grantee shall deliver evidence of the required insurance to Grantor within five(5)business days of request therefor. 7. Hold Harmless and Defend. Grantee hereby covenants and agrees, to the extent permitted by law, to defend and hold Grantor (which, for the purposes of this Paragraph, shall include the officers, directors, partners, trustees, beneficiaries, members, managers, employees, agents, tenants, or contractors of Grantor), harmless from and against any and all loss, claim, damage, cause of action, penalty, fine, cost or expense, including, without limitation, reasonable attorneys' fees and expenses, suffered by any such indemnified Party either (i) arising out of or relating to the discharge of drainage from any portion of the Grantee's Land into the AY Project Drainage System, regardless of whether such discharge is then in compliance with applicable Legal Requirements, or(ii) arising out of or relating to the breach of any provision of this Agreement by, or the negligent or intentional act or omission of, Grantee or any of its employees, agents, or contractors, or (iii) arising out of the failure of Grantee to comply with all Permits and Legal Requirements in connection with the exercise of its rights or obligations hereunder, or (iv) arising out of or relating to the discharge or release of"Hazardous Substances" from Grantee's Land into 00980997.4 6 the AY Project Drainage System. As used in this Agreement, (a) the term "Hazardous Substances" shall mean, collectively, any and all chemicals, substances, wastes, materials, gases or emissions which are deemed hazardous, toxic, a pollutant or a contaminant under applicable "Environmental Laws", or which have been shown to have significant adverse effects on human health or the environment, including, but not limited to, petroleum and petroleum products, asbestos, chlorofluorocarbons, radon gas and PCB's; and (b) the term "Environmental Laws" shall mean, collectively, any and all laws, codes, ordinances, bylaws, rules and regulations, executive orders and other administrative orders, judgments, decrees, injunctions and other judicial orders of or by any governmental authority, together with their implementing regulations, now or hereafter in effect, relating to pollution or protection of human health or the environment, including, without limitation, emissions, discharges, releases or threatened releases of Hazardous Substances, or the manufacture, processing, distribution, use, treatment, storage, disposal, transport or handling of Hazardous Substances, including, without limitation, M.G.L. Chapter 2 1 E and the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended(42 U.S.C. Sections 9601 et seq.) 8. Successors and Assians/Bindina Nature. As used herein, the terms "Grantor" and "Grantee" shall include their respective successors, assigns and successors in title to their respective properties or interests therein (or portions thereof), where the context so permits, and the provisions contained herein shall be covenants running with the land, and shall be binding upon and inure to the benefit of those, respectively, claiming title to or interests in the AY Project Site, the AY Project or Grantee's Land,respectively, or any portions thereof. 9. Non-Exclusive. This Agreement is not to be construed in any way so as to grant any easement to the exclusion of the owner of the servient estate, its successors and/or assigns, or others later granted a similar right. Grantor hereby expressly reserves the right to use the portions of the AY Project Site burdened by the easements granted herein for all uses not inconsistent with the easements granted herein. 10. Mechanics' Liens. Prior to the commencement by any Party of any work on an Easement Area within the land of the other Party under this Agreement, the Party performing such work shall notify all of its contractors (and shall cause its contractors to notify all of its respective subcontractors) that it is not the owner of the land upon which such work is to be performed, that it is not acting as the agent of the owner of such land in arranging for such work to be performed, and that it does not have the power or the authority to act on behalf of such other Party. Each Party shall, within thirty (30) days after notice of the recording or filing thereof, discharge (either by payment or by the filing of the necessary bond, or otherwise) any mechanic's or materialmen's lien filed or recorded against the other Party's land arising out of any payment due or claimed to be due for any labor, services, materials, supplies or equipment alleged to have been furnished to or for such Party in, upon or about the land of such other Party. If the Party required to discharge such lien fails to do so within such 30-day period, the owner of the property encumbered by such lien shall have the right to discharge the same and to recover from the defaulting Party the reasonable costs incurred in doing so (and the provisions of Paragraph 5(e) above shall apply to such reimbursement obligation). 00980997.4 7 11. Release. Grantee, on behalf of itself and all parties claiming by, through or under it, hereby releases Grantor (which, for the purposes of this Paragraph, shall include the officers, directors, partners, trustees, beneficiaries, members, managers, employees, agents, tenants, or contractors of Grantor(collectively, including Grantor, the "Released Parties")) from, and hereby waives and agrees not to make any claim against any Released Party with respect to, any and all claims of any nature whatsoever (including, without limitation, claims for damages, indemnification or contribution) relating to or arising out of the condition of the AY Project Drainage System or the performance of the AY Project Drainage System in carrying drainage from Grantee's Land, at any time or from time to time, including, without limitation, claims arising out of any blockage or interruptions in the conveyance of stormwater from Grantee's Land through the AY Project Drainage System. 12. No Personal Liabilitv. Any recovery hereunder shall be limited to the assets of a Party, and neither the respective directors, shareholders, officers, managers, members, employees, or affiliated entities of any Party, shall have any personal liability hereunder, nor shall they be named personally in any action, suit, or proceedings except to the extent to which they are required to be so named by applicable laws or rules of practice in order to maintain an action against a Party (which action shall be subject to the foregoing limitation on recovery), nor shall their personal assets be subject to levy or execution in connection with the liability of any Party hereunder. 13. Further Assurances. Each Party hereby agrees to execute, acknowledge and deliver such further assurances and amendments hereto as may from time to time be reasonably requested by the other Party in order to better assure the rights and obligations herein created. 14. Severability. If any provision of this Agreement, or the application thereof to any person or circumstance shall, to any extent, be found by a court of competent jurisdiction to be invalid or unenforceable, the remainder of this Agreement, or the application of such term or provision to persons or circumstances other than those as to which it is held invalid or unenforceable, shall not be affected thereby and each other term or provision of this Agreement shall be valid and be enforced to the fullest extent permitted by law. 15. Unavoidable Delays. Whenever performance is required of any Party hereunder, that Party shall use all due diligence to perform and take all necessary measures in good faith to perform; provided, however, that if performance or completion of performance shall be delayed at any time by reason of(i) act of God, war, civil commotion, riots, strikes, picketing, or other labor disputes, unavailability of labor or materials, governmental restrictions or inability to obtain governmental approvals or permits, casualty, unusual weather, epidemic or pandemic, or (ii) other events beyond the control of the Party, financial inability excepted, then the time for performance as herein specified shall be appropriately extended by the amount of the delay actually so caused. The provisions of this Paragraph shall not operate to excuse Grantee from the prompt payment of any monies to be paid pursuant to this Agreement. 00980997.4 8 16. Not a Public Dedication. Nothing herein contained shall be deemed to be a gift or dedication of any portion of the AY Project, the AY Project Site or the AY Project Drainage System to the Town or the general public for any public use or purpose whatsoever. 17. Notices. All notices and other communications provided for or permitted hereunder shall be in writing and shall be delivered by hand, or mailed by registered or certified mail, postage prepaid, return receipt requested, or delivered by a nationally-recognized overnight courier service (such as Federal Express or U.S. Postal Service Express Mail), freight charges prepaid, addressed to each Party at the following addresses or at such other address as may be set forth in a notice delivered or mailed as herein provided: Grantor: Arsenal Yards Holding LLC c/o Boylston Properties Company 800 Boylston Street, Suite 1390 Boston, MA 02199 Attention: Mark A. Deschenes With a copy to: Sherin and Lodgen LLP 101 Federal Street Boston, MA 02110 Attention: Peter Friedenberg, Esq. Grantee: Town of Watertown 149 Main Street Watertown, MA 02472 Attention: Michael J. Driscoll, Town Manager With a copy to: Mark R. Reich, Esq. KP Law, P.C. 101 Arch Street, 12t'Floor Boston, MA 02110 Notices shall be deemed given when delivered by hand to the addressee, or if so mailed or delivered by courier, when delivered or first tendered for delivery as shown on the records of the U.S. Postal Service or such courier service. 18. Waiver. Any waiver by either Party of any provision of this Agreement or any exhibit attached hereto must be in writing and signed by the Party against whom the enforcement of such waiver is sought; and shall constitute a waiver of that provision on that occasion only, and shall not operate or be construed as a waiver of any other provision or subsequent breach thereof. 00980997.4 9 19. Representations and Warranties. (a) Grantee hereby represents and warrants to Grantor as follows: (1) all approvals of Grantee required for the execution of this Agreement and the performance by Grantee of its agreements and obligations hereunder in accordance with the terms of this Agreement have been obtained; (2) this Agreement has been duly executed and delivered by Grantee; and (3) this Agreement, when fully executed and delivered by the Parties, shall constitute the valid and binding obligation of Grantee, subject to general equitable principles. (b) The Primary Trustees, in their capacity as Primary Trustees and not individually, hereby represent and warrant to Grantee as follows: (1) the Primary Trustees have the power and authority to execute this document on behalf of the Primary Condominium Trust and to cause the Primary Condominium Trust to perform its agreements and obligations hereunder in accordance with the terms of this Agreement; (2) this Agreement has been duly executed and delivered by the Primary Trustees; and (3) this Agreement, when fully executed and delivered by the Parties, shall constitute the valid and binding obligation of the Primary Condominium Trust, subject to general equitable principles. (c) AY Holding hereby represents and warrants to Grantee as follows: (1) all approvals by any member or manager of AY Holding required for the execution of this Agreement and the performance by AY Holding of its agreements and obligations hereunder in accordance with the terms of this Agreement have been obtained; (2) this Agreement has been duly executed and delivered on behalf of AY Holding; and (3) this Agreement, when fully executed and delivered by the Parties, shall constitute the valid and binding obligation of AY Holding, subject to general equitable principles. 20. General. Whenever required by the context of this Agreement, the singular shall include the plural, and vice versa, and the masculine shall include the feminine, and vice versa. Headings used in this Agreement are for convenience or reference only and shall not affect meanings or interpretations of the contents of this Agreement. This Agreement constitutes the entire agreement among the Parties as to the subject matter hereof, and neither Party has made any representations or warranties, express or implied, with respect to the subject matter hereof (including, without limitation, as to the condition or capacity of the AY Project Drainage System), other than those expressly set forth herein. Other than the rights, easements and covenants expressly granted or made in this Agreement, there are no other rights, easements or covenants granted or made hereby and none shall be created by implication, necessity or otherwise. This Agreement may not be amended, modified, or terminated except by a written instrument duly executed by Grantor and Grantee, or their respective successors in title. This Agreement shall be construed without regard to any presumption or other rule requiring construction against the Party who drafted or caused this Agreement to be drafted. Time is of the essence of each obligation to be performed by any Party hereunder. 21. Counterparts. This Agreement may be executed in counterparts, each of which 00980997.4 10 shall be deemed an original instrument, but all of which together shall constitute one and the same instrument. [No further text; signature pages begin on the next page] 00980997.4 11 Executed as an instrument under seal as of the date first set forth above. GRANTOR: PRIMARY TRUSTEES OF THE ARSENAL YARDS PRIMARY CONDOMINIUM TRUST: William P. McQuillan, As Trustee as aforesaid and not individually Thomas V. Wilder, As Trustee as aforesaid and not individually David J. Mallen, As Trustee as aforesaid and not individually COMMONWEALTH OF MASSACHUSETTS Suffolk, ss. On this day of , 2020, before me, the undersigned Notary Public, personally appeared WILLIAM P. McQUILLAN, in his capacity as Primary Trustee of the Arsenal Yards Primary Condominium Trust, whose name is signed on the preceding document, and such person acknowledged to me that he signed such document voluntarily for its stated purpose. The identity of such person was proved to me through satisfactory evidence of identification, which was [_] photographic identification with signature issued by a federal or state governmental agency, [_] oath or affirmation of a credible witness, or [_] personal knowledge of the undersigned. Notary Public My Commission Expires: [Grantor Signature Page to Drainage Easement Agreement] 00980997.4 COMMONWEALTH OF MASSACHUSETTS Suffolk, ss. On this day of , 2020, before me, the undersigned Notary Public, personally appeared THOMAS V. WILDER, in his capacity as Primary Trustee of the Arsenal Yards Primary Condominium Trust, whose name is signed on the preceding document, and such person acknowledged to me that he signed such document voluntarily for its stated purpose. The identity of such person was proved to me through satisfactory evidence of identification, which was [_] photographic identification with signature issued by a federal or state governmental agency, [_] oath or affirmation of a credible witness, or [_] personal knowledge of the undersigned. Notary Public My Commission Expires: COMMONWEALTH OF MASSACHUSETTS Suffolk, ss. On this day of , 2020, before me, the undersigned Notary Public, personally appeared DAVID J. MALLEN, in his capacity as Primary Trustee of the Arsenal Yards Primary Condominium Trust, whose name is signed on the preceding document, and such person acknowledged to me that he signed such document voluntarily for its stated purpose. The identity of such person was proved to me through satisfactory evidence of identification, which was [_] photographic identification with signature issued by a federal or state governmental agency, [_] oath or affirmation of a credible witness, or [_] personal knowledge of the undersigned. Notary Public My Commission Expires: [Grantor Signature Page to Drainage Easement Agreement] 00980997.4 Executed as an instrument under seal as of the date first set forth above. GRANTOR: ARSENAL YARDS HOLDING LLC, a Delaware limited liability company By: BP Watertown Retail LLC, a Delaware limited liability company, its Managing Member By: BP/Arsenal Group LLC, a Delaware limited liability company, its Managing Member By: Name: William P. McQuillan Title: Manager COMMONWEALTH OF MASSACHUSETTS Suffolk, ss. On this day of , 2020, before me, the undersigned Notary Public, personally appeared , in his capacity as Manager of BP/Arsenal Group LLC, a Delaware limited liability company, in its capacity as Managing member of BP Watertown Retail LLC, a Delaware limited liability company, in its capacity as Managing Member of ARSENAL YARDS HOLDING LLC, whose name is signed on the preceding document, and such person acknowledged to me that he signed such document voluntarily for its stated purpose. The identity of such person was proved to me through satisfactory evidence of identification, which was [_] photographic identification with signature issued by a federal or state governmental agency, [_] oath or affirmation of a credible witness, or [_] personal knowledge of the undersigned. Notary Public My Commission Expires: [Grantor Signature Page to Drainage Easement Agreement] 00980997.4 Executed as an instrument under seal as of the date first set forth above. GRANTEE: THE CITY KNOWN AS THE TOWN OF Approved as to form: WATERTOWN By: Name: Michael J. Driscoll Title: Town Manager COMMONWEALTH OF MASSACHUSETTS Middlesex, ss. On this day of , 2020, before me, the undersigned Notary Public, personally appeared Michael J. Driscoll, in his capacity as Town Manager of THE CITY KNOWN AS THE TOWN OF WATERTOWN, whose name is signed on the preceding document, and such person acknowledged to me that he/she signed such document voluntarily for its stated purpose. The identity of such person was proved to me through satisfactory evidence of identification, which was [_] photographic identification with signature issued by a federal or state governmental agency, [_] oath or affirmation of a credible witness, or [_] personal knowledge of the undersigned. Notary Public My Commission Expires: [Grantee Signature Page to Drainage Easement Agreement] 00980997.4 Exhibit A Portion of AY Proiect Site Subiect to Easement and Showing Location of Connection [See attached plan] 00980997.4 '-1 ,1 a 1 EXISTING °�• ��� �a PROPERTY 1 ° LINE (TYP.) I 1 1 EXISTING A UILDING EXISTING DMH-1 I'�` PROPOSED DMH AND LINE ' I BY TOWN. NEW LINE TO TIE UILDING r 10 INTO PROJECT DRAINAGE I PROPOSE ! 10 SYSTEM AT DMH-1 PROPOSED I �, C3 ] PARK DRAINAGE I -0 EASEMENT (TYP.) G �� weArum , -- D O / ING PROPOSE UILD ; = / PROPOSED ����r BUILDING E7' EXISTING BUILDING O "E1" El I ' T- I I PROPOSE�UILDING h I I PROPOSED PARK 1 I DRAINAGE ---_� EASEMENT PROGRESS PRINT r - � � - (TYP.)ilk -- --Jul 09, 2020 so 0 40 so 160 PROPERTY ARSENAL STREET LINE (TYP.)' (PUBLIC — VARIABLE WIDTH) °%— GRAPHIC SCALE IN FEET e» - - c, Prepared by: Project Name: Drawing Name: 'Drawing No.: I I D-Isnb by: M I Drownbr me RJO'CoxxFlt EN& PROJECT SITE I cb.ax a br Rws &nsSEERS,1 �3 Y�ADS EX-A I I scale: -80' DRAINAGE 1 i DRf�T 7/9/20201 I Dote: 07/108/2020 =—_A EASEMENT EXHIBIT Project No.: No. RENSION DATE J WATERTOWN,MA 16041 Copyright©2018 by R.J.O'Connell&Associates.Inc. Drawing name: G:\MA\Wotertown\Boylston Properties\Arsenal Mall\Exhibits\2020-07-08 — Drainage Easement with Park Exhibit\16041—C-2 GRID — FINAL — EX—A and EX—B.dwg Jul 09, 2020 — 10:42am Exhibit B Portion of Park Drainage Svstem to be Served by Connection to AY Proiect Drainage Svstem [See attached plan] 00980997.4 ✓o c ONLY) J ZONE ES 200'NOT TO EXCEED 0100 = 4.6CFS V100 = 0.38 ACRE-FEET i °"' �1 EXISTING a11. PROPERTY i i _ — _ __.-�=, ' LINE (TYP.) IF 1 uil UII..DIN - I G EXISTING B EXISTING DMH-1 I!11III�° PROPOSED DMH AND LINE It BY TOWN. NEW LINE TO TIE INTO PROJECT DRAINAGE OpOSE�BUILDING J 1 I1 I PR , SYSTEM AT DMH-1 — PROGRESS PRINT - t= C C J u l 09, 2020 I I Q !y 60 0 30 60 120 /,F,•I °"--' gU1LDING /j � ! / � PROPOSE GRAPHIC SCALE IN FEET / "I Des Prepared by: Project Nome: Drawing Name: Drawing No.: Dra I µglned by: TRG � w' I I by: TRG RJO'CONNELL pm4&GI' PARK SITE I I Checked by: &ASSOCIATES,RINC. �1 �D� EX-Y I I I sam 1"e: r_so• s DRAINAGE G^ D i. W 7/9/20201 Date: 07/08/2020 rL EASEMENT EXHIBIT Project No.: No. RENSION DATE J WATERTOWN,MA, 16041 Copyright©2018 by R.J.O'Connell dt bsociotes.Inc. Drawing name: G:\MA\Wotertcwn\Boylston Properties\Arsenal Mall\Exhibits\2020-07-08 — Drainage Easement with Park Exhibit\16041—C-2 GIRD — FINAL — EX—A and EX—B.dwg Jul 09, 2020 — 10:43am