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HomeMy Public PortalAbout2020-08-11 TEMP EASEMENTS LTR-ORDER-SIG_1 August 31, 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: Temporary Construction Access Easement Agreement – Arsenal Park Dear Mr. Driscoll: I am writing to you regarding the proposed Temporary Construction Access Easement Agreement (the “Agreement”) between the Arsenal Yards Primary Condominium Trust (the “Condominium Trust”), Arsenal Yards Holding LLC (“AY Holding”) and BP Watertown Retail LLC (“BP Watertown Retail,” together with the Condominium Trust and AY Holding, the “AY Parties”), the owners of property located at 485 Arsenal Street (the “Condominium Land”) and the Town of Watertown, the owner of Arsenal Park (the “Park”). The primary purpose of the Agreement is to facilitate construction of improvements on the Condominium Land and improvement of the Park, by allowing each owner to use the property of the other party during construction of improvements on their respective properties. The Agreement provides for a series of cross-easements affecting the Condominium Land and the Park, as follows: 1. The Town grants to AY Holding and BP Watertown Retail a temporary, non- exclusive easement to use the surface of portions of the Park for the purpose of providing access by foot and vehicle, including construction equipment, in connection with the construction of improvements known as Building F and Building G on the Condominium Land. 2. The AY Parties grant to the Town a temporary, non-exclusive easement to use the surface of portions of the Condominium Land for the purpose of providing access by foot and vehicle, including construction equipment, in connection with the construction of improvements at the Park. 3. The Town grants to AY Holding and BP Watertown Retail a temporary, non- exclusive easement to use a portion of the Park for the limited purpose of constructing and installing hardscape (e.g., pavers) and related improvements to match with and connect to similar hardscape improvements to be constructed on the Condominium Land. The Town is responsible for the cost of installation of the hardscape. KP Law, P.C. | Boston • Hyannis • Lenox • Northampton • Worcester Mr. Michael J. Driscoll Town Manager August 7, 2020 Page 2 Very truly yours, Katharine Lord Klein 4. The Town grants to BP Watertown Retail a temporary, non-exclusive easement to use portions of the Park for the limited purpose of installing tie backs and related support components to provide lateral and subadjacent support during the construction of improvements known as Building G on the Condominium Land. The Office of Community Development & Planning supports the Agreement. 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 creating the cross-easements, and enabling you to execute the Agreement on behalf of the Town. Please contact Mark Reich or me with any questions regarding this matter. KLK/caa Enc. cc: Office of Community Development & Planning 728484/WATR/0160 Watertown Town Council Administration Building 149 Main Street Watertown, MA 02472 Phone: 617-972-6470 ORDER # 72 R– 2020 – 72 AN ORDER RELATIVE TO ENTRY INTO A TEMPORARY CONSTRUCTION ACCESS EASEMENT AGREEMENT GRANTING CROSS EASEMENTS FOR THE BENEFIT OF ARSENAL PARK AND THE ARSENAL YARDS PRIMARY CONDOMINIUM AND AUTHORIZING THE TOWN MANAGER TO EXECUTE THE AGREEMENT ON BEHALF OF THE TOWN WHEREAS, the Town owns property known as Arsenal Park, located off of Greenough Boulevard, which the Town intends to renovate and improve for use by the public; and WHEREAS, Arsenal Yards Holding LLC and BP Watertown Retail LLC are together developing a mixed-use project at land of the Arsenal Yards Primary Condominium, situated at 485 Arsenal Street, including residential, commercial, office, laboratory and retail buildings and spaces, with related improvements; and WHEREAS, the construction of Arsenal Park will be facilitated if the Town is permitted to use a small portion of the Condominium land temporarily during such construction by foot and motor vehicle; and WHEREAS, the development at the Condominium will be facilitated if Arsenal Yards Holding LLC and BP Watertown Retail LLC are permitted to use a small portion of Arsenal Park temporarily for purposes of: (i) accessing the Condominium land by foot and motor vehicle during construction; (ii) constructing a limited area of hardscape in Arsenal Park; and (iii) installing subsurface construction support for use during the initial stages of construction of a building on the Condominium land. NOW THEREFORE BE IT ORDERED: That, the Town Council agrees that the Town shall accept a temporary access easement to facilitate construction at Arsenal Park and shall grant easements to Arsenal Yards Holding LLC, BP Watertown Retail LLC and the Arsenal Yards Primary Condominium for the purposes of: (i) accessing the Condominium land by foot and motor vehicle during construction; (ii) constructing a limited area of hardscape in Arsenal Park; and (iii) installing ELECTED OFFICIALS: Mark S. Sideris, Council President Vincent J. Piccirilli, Jr., Vice President & District C Councilor Caroline Bays Councilor At Large Anthony J. Donato, Councilor At Large John G. Gannon Councilor At Large Anthony Palomba, Councilor At Large Angeline B. Kounelis, District A Councilor Lisa J. Feltner, District B Councilor Kenneth M. Woodland, District D Councilor subsurface construction support for use during the initial stages of construction of a building on the Condominium land. AND FURTHER, that the Town Council hereby authorizes the Town Manager to execute the Temporary Construction Access 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 _9_ for, _0_ against and _0_ present on August 11, 2020. _______________________________ ____________________________ Marilyn W. Pronovost, Council Clerk Mark S. Sideris, Council President 00981566.4 RECORDING REQUESTED BY AND WHEN RECORDED RETURN TO: _____________________ _____________________ _____________________ _____________________ TEMPORARY CONSTRUCTION ACCESS EASEMENT AGREEMENT THIS TEMPORARY CONSTRUCTION ACCESS 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, 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 Registry of Deeds in Book 71113, Page 277 (as the same may have been or is hereafter amended, supplemented or modified, the “Master Deed”), and BP WATERTOWN RETAIL LLC, a Delaware limited liability company which is the holder of certain “Development Rights” (as defined in the Master Deed) with respect to the construction of the building within the AY Project known as “Building G” (“BP Watertown Retail”) (the Primary Trustees, AY Holding and BP Watertown Retail are hereinafter referred to, collectively, as the “AY Parties”),and THE CITY KNOWN AS THE TOWN OF WATERTOWN, a municipality of The Commonwealth of Massachusetts (the “Town”). The Primary Trustees (in their capacity as the Primary Trustees, and not individually), AY Holding, BP Watertown Retail, and the Town are each 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 “Condominium Land”) known as “Arsenal Yards”, which is currently being developed by AY Holding and BP Watertown Retail 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”); 00981566.4 2 WHEREAS, the Town owns property adjacent to the Condominium Land known as “Arsenal Park”, consisting of approximately 13.7 acres of land off of Greenough Boulevard (the “Town’s Land”), which the Town intends to renovate and improve for use as a park to provide open space and recreational areas for use by the public (the “Park”); WHEREAS, the construction of the Park will be facilitated if the Town is permitted to use a small portion of the Condominium Land temporarily during such construction for purposes of accessing by foot and motor vehicle (including construction equipment) portions of the Town’s Land to perform such construction; and WHEREAS, the construction of the AY Project will be facilitated if AY Holding and BP Watertown Retail are permitted to use a small portion of the Town’s Land temporarily during such construction (i) for purposes of accessing by foot and motor vehicle (including construction equipment) portions of the Condominium Land to perform such construction, and (ii) for purposes of constructing a limited area of hardscape on the Town’s Land to connect to the hardscape to be constructed on the Condominium Land as part of the AY Project, and (iii) for the purpose of installing a subsurface construction support system for use during the initial stages of construction of “Building G” by BP Watertown Retail. 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, the AY Parties and the Town hereby covenant and agree as follows: 1.Grant of Temporary Construction Access Easements. (a) The Town hereby grants to AY Holding and BP Watertown Retail, for the benefit of and as appurtenant to their respective interests in the Condominium Land and the AY Project, the temporary non-exclusive right and easement, in common with the Town and its contractors (the “AY Construction Access Easement”), to use the surface of that portion of the Town’s Land shown on the plan attached hereto as Exhibit A and made a part hereof (the “AY Construction Access Easement Area”)for the limited purpose of providing access by foot and by motor vehicle (including, without limitation, construction equipment) to portions of the Condominium Land through the Town’s Land in connection with the construction by AY Holding and BP Watertown Retail of the portions of the AY Project commonly known as “Building F” and “Building G”. Except as expressly provided in this Agreement, the AY Construction Access Easement Area shall be used for purposes of such access only, and no construction shall occur therein, nor shall any materials or equipment be stored therein by AY Holding or BP Watertown Retail, or their respective contractors. (b) The AY Parties hereby grant to the Town, for the benefit of and as appurtenant to the Town’s Land, the temporary non-exclusive right and easement, in common with the AY Parties, their tenants, invitees and contractors (the “Town’s Construction Access Easement”), to use the surface of that portion of the Condominium Land shown on the plan 00981566.4 3 attached hereto as Exhibit B and made a part hereof (the “Town’s Construction Access Easement Area”)for the limited purpose of providing access by foot and by motor vehicle (including, without limitation, construction equipment) to portions of the Town’s Land through the Condominium Land in connection with the construction by the Town of the Park. Except as expressly provided in this Agreement, the Town’s Construction Access Easement Area shall be used for purposes of such access only, and no construction shall occur therein, nor shall any materials or equipment be stored therein by the Town or its contractors. (c) The AY Construction Access Easement and the Town’s Construction Access Easement shall each expire, without the necessity of any notice to, or action of, any Party, on October 31, 2020;provided, however,that this date may be extended for up to six (6) months (i.e., to a date not later than April 30, 2021) by written notice given to the Town (by AY Holding or BP Watertown Retail with respect to the AY Construction Access Easement) or by written notice given to the AY Parties (by the Town with respect to the Town Construction Access Easement), in each case with such notice to be given not later than October 1, 2020. (d) The Town further hereby grants to AY Holding and BP Watertown Retail, for the benefit of and as appurtenant to their respective interests in the Condominium Land and the AY Project, the temporary non-exclusive right and easement, in common with the Town and its contractors (the “AY Hardscape Construction Easement”), to use that portion of the Town’s Land shown on the plan attached hereto as Exhibit C and made a part hereof (the “AY Hardscape Construction Easement Area”)for the limited purpose of constructing and installing therein such hardscape (e.g., pavers) and related improvements (collectively, the “Hardscape Improvements”)as are shown on and described in the plans and specifications therefor prepared by or on behalf of the Town and approved in writing by AY Holding and BP Watertown Retail, which approval shall not be unreasonably withheld (collectively, the “Hardscape Construction Plans”) so as to match with and connect to similar hardscape improvements to be constructed on the Condominium Land as part of the AY Project. The AY Hardscape Construction Easement Area shall be used for purposes of access, construction, and storage of materials and equipment during construction of the Hardscape Improvements. The term of the AY Hardscape Construction Easement shall commence upon the giving of written notice by AY Holding or BP Watertown Retail (or either of them) to the Town of the intention to commence construction of the Hardscape Improvements, and shall end on November 30, 2022 (unless, prior to such date, AY Holding and BP Watertown Retail deliver to the Town a certification by the architect of record for the AY Project that the construction of the Hardscape Improvements has been completed substantially in accordance with the Hardscape Construction Plans);provided, however,that the November 30, 2022 date may be extended for up to six (6) months (i.e., to a date not later than May 31, 2023) by written notice given to the Town by AY Holding or BP Watertown Retail not later than November 1, 2022. Notwithstanding anything to the contrary contained in this Agreement, in the event that, for whatever reason, AY Holding and BP Watertown Retail have not completed the construction of the Hardscape Improvements by the date on which the term of the AY Hardscape Construction Easement (as the same may have been extended as provided in the immediately preceding sentence) would otherwise expire pursuant to this Paragraph 1(d), the Parties will agree in writing on such further extension of the 00981566.4 4 term of the AY Hardscape Easement as may be necessary to permit the completion of such work. Upon request of any Party, the Parties shall execute and record with the Middlesex South Registry of Deeds a notice of the commencement and/or the expiration of the term of the AY Hardscape Construction Easement. (e) The Town further hereby grants to BP Watertown Retail, for the benefit of and as appurtenant to its interests in the Condominium Land and the AY Project, the temporary non-exclusive right and easement, in common with the Town and its contractors (the “BP Watertown Retail Construction Support Easement”), to use those portions of the Town’s Land shown on the plan attached hereto as Exhibit D and made a part hereof (the “BP Watertown Retail Construction Support Easement Area”)for the limited purpose of installing, constructing, maintaining, repairing and replacing tie backs and related support components (collectively, the “Construction Support Components”) to provide lateral and subadjacent support during the construction of the portion of the AY Project commonly known as “Building G”, all as shown on plans prepared by BP Watertown Retail and approved by the Town, which approval shall not be unreasonably withheld. The provisions of Paragraph 3 below shall apply to the exercise by BP Watertown Retail of the BP Watertown Retail Construction Support Easement. BP Watertown Retail shall have the right to disconnect the Construction Support Components from “Building G” at such time as they are no longer needed, but shall have no obligation to remove the Construction Support Components from the BP Watertown Retail Construction Support Easement Area. After BP Watertown Retail so disconnects the Construction Support Components from “Building “G”, BP Watertown Retail shall have no obligation with respect thereto, including, without limitation, no obligation with respect to the maintenance, repair or replacement thereof, and the Town thereafter, in its sole election, may (but shall have no obligation to) remove any or all of the Construction Support Components at its sole cost and expense. At any time after BP Watertown Retail has disconnected all of the Construction Support Components from “Building G”, BP Watertown Retail may, and upon request by the Town BP Watertown Retail shall, execute and deliver to the Town a notice of termination of the BP Watertown Retail Construction Support Easement in form suitable for recording with the Middlesex South Registry of Deeds. The term of the BP Watertown Retail Construction Support Easement shall commence on the date of this Agreement and shall expire upon the recording of such a notice of termination. Each of the AY Construction Access Easement Area, the Town’s Construction Access Easement Area, the AY Hardscape Construction Easement Area, and the BP Watertown Retail Construction Support Easement is sometimes referred to in this Agreement, individually, as an “Easement Area”. 2.Permits and Compliance with Law. (a) Each Party shall be responsible, at its sole cost and expense, for 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 its use of its respective Easement Area for the purposes set forth in Paragraphs 1(a), 1(b), 1(d) or 1(e) above, respectively (collectively, “Legal Requirements”). 00981566.4 5 (b) The Town shall be responsible, at its sole cost and expense, for obtaining and maintaining in force any and all Permits required from time to time by any Legal Requirements for the construction of the Hardscape Improvements on the Town’s Land. (c) Each Party shall be responsible, at its sole cost and expense, for complying with the terms of all Legal Requirements and all Permits (if any) issued in connection with the construction of the Park, the AY Project or the Hardscape Improvements (as the case may be) as the same may be applicable to the Party’s use of the respective Easement Area for the purposes set forth in Paragraph 1 above. 3.Exercise of Temporary Rights and Easements Pursuant to Paragraphs 1(a), 1(b) and 1(e) Above. (a) Each Party shall give written notice to the other Parties at least seven (7) days’ prior to the first entry upon the land of another Party pursuant to this Agreement. No further notice of entry thereafter shall be required. (b) Each Party shall exercise the rights and easements granted to it pursuant to this Agreement in such a manner as not to cause damage to the property (including, without limitation, the land and any improvements thereon or thereunder) of any other Party, and shall be solely responsible, at its sole cost and expense, for promptly correcting any damage resulting from such exercise, whether caused by negligence, willful misconduct or otherwise. Once a Party commences the use of an Easement Area for purposes of construction, it shall pursue such construction diligently to completion (subject to unavoidable delays as described in Paragraph 14 below, written notice of which has been given to the other Parties). (c) Promptly after a Party no longer requires the use of its Easement Area for the purpose described in Paragraph 1(a), 1(b) or 1(e) above (as applicable), but in all events not later than the date set forth in Paragraph 1(c) above (as such date may be extended as provided in Paragraph 1(c) above) with respect to the easements granted in Paragraphs 1(a) and 1(b) above, such Party shall restore and repair the affected Easement Area substantially to its former condition to the extent reasonably practicable, including, without limitation, the removal of all debris and 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 use for construction access. The provisions of this subparagraph (c) shall apply to the BP Watertown Retail Construction Support Easement Area but shall not require the removal of any subsurface elements of the Construction Support Components. The provisions of this subparagraph (c) shall not apply to the AY Hardscape Construction Easement Area (as to which, see Paragraph 4(d) below). (d) If the Party responsible for performing any corrective or restoration work pursuant to the provisions of this Agreement fails to do so when required hereunder, and such failure continues for thirty (30) days after receipt of written notice from another Party (subject to unavoidable delays as described in Paragraph 14 below experienced by the defaulting Party, written notice of which has been given to the other Parties), a non-defaulting Party may (but 00981566.4 6 shall not be obligated to) perform such work and shall be entitled to recover from the defaulting Party the entire amount of the actual costs and expenses so incurred;provided, however,that any non-defaulting Party may perform such work immediately upon giving written notice to the defaulting Party (and without the necessity of waiting for the expiration of such 30-day period) if necessary to insure continued access or utility service to its land and/or the improvements situated thereon. (e) The rights of the AY Parties reserved in Paragraphs 3(a) – (d) above may be exercised by AY Holding or BP Watertown Retail on behalf of the AY Parties. 4.Exercise of AY Hardscape Construction Easement. (a) The provisions of Paragraph 3 above shall apply to the exercise by AY Holding and BP Watertown Retail of the AY Hardscape Construction Easement and the construction of the Hardscape Improvements. (b) Before commencing construction of the Hardscape Improvements, the Town, AY Holding and BP Watertown Retail shall approve in writing the Hardscape Construction Plans and the budget for construction of the Hardscape Improvements (including customary contingency), which approval shall not be unreasonably withheld. (c) AY Holding and BP Watertown Retail shall construct the Hardscape Improvements in a good and workerlike manner, in accordance with the approved Hardscape Construction Plans, and in compliance with all Permits and applicable Legal Requirements. Once such construction is commenced, it shall be pursued diligently to completion (subject to unavoidable delays as described in Paragraph 14 below, written notice of which has been given to the Town). (d) Promptly after completion of construction of the Hardscape Improvements, AY Holding and BP Watertown Retail shall restore and repair any other portions of the AY Hardscape Construction Easement Area substantially to their former condition to the extent reasonably practicable, including, without limitation, the removal of all debris and 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 construction. (e) The Town shall pay all costs and expenses of construction of the Hardscape Improvements, which payment shall be made (at the option of AY Holding and BP Watertown Retail) either (i) by making payment thereof directly to the contractor performing the same as such payment is requisitioned by such contractor, or (ii) by reimbursing each of AY Holding and BP Watertown Retail for such costs and expenses incurred by it, within thirty (30) days of receipt of an invoice therefor (which invoices may be delivered either periodically during construction of the Hardscape Improvements or at one time after completion of such construction). 00981566.4 7 (f) AY Holding and BP Watertown Retail shall have no obligation with respect to the Hardscape Improvements after the completion of the initial construction thereof including, without limitation, no obligation with respect to the maintenance, repair or replacement of the Hardscape Improvements or any portion thereof, all of which shall be the sole responsibility of the Town at its sole cost and expense. AY Holding and BP Watertown Retail make no representations or warranties with respect to the design of the Hardscape Improvements, whether express or implied, and all such representations and warranties are hereby expressly disclaimed. 5.Insurance. Each of the Town, AY Holding and BP Watertown Retail agrees to maintain in full force and effect, with companies duly licensed by The Commonwealth of Massachusetts, the following insurance coverages with respect to the easement areas benefitting its Property, for the entire term of each such easement as set forth in Paragraph 1 above: (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 such Party assumed under contract and (y) liability imputed to such Party 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 bodilyinjuryand property damage; and (iii) workers’ compensation insurance in the amount and with such coverages as are required by statute. Each such policy (other than worker’s compensation) shall name the Party on whose land such easement area is located as an additional insured. All insurance policies maintained pursuant to this Paragraph shall contain a clause waiving the right of subrogation in favor of the other Parties. Each Party named in the first sentence of this Paragraph shall deliver evidence of the required insurance to the other Parties within five (5) business days of request thereof 6.Hold Harmless and Defend. (a) The Town hereby covenants and agrees, to the extent permitted by law, to defend and hold the AY Parties (which, for the purposes of this Paragraph, shall include the officers, directors, partners, trustees, beneficiaries, members, managers, employees, agents, tenants, or contractors of the AY Parties), 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 arising out of or relating to either (i) the exercise by the indemnifying Party of the rights and easements hereby created, or (ii) the breach of any provision of this Agreement by, or the negligent or intentional act or omission of, the indemnifying party, or (iii) the failure of the indemnifying party to comply with all Permits and Legal Requirements in connection with the exercise of its rights or obligations hereunder, or (iv) the discharge or release of “Hazardous Substances” by the indemnifying party on the land of the other Party. For the purposes of this Paragraph 6(a), the term “the indemnifying Party” shall mean the Town, its employees, agents and contractors. 00981566.4 8 (b) AY Holding and BP Watertown Retail hereby jointly covenant and agree to defend and hold the Town (which, for the purposes of this Paragraph, shall include the Town’s employees, agents and contractors), 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 arising out of or relating to either (i) the exercise by the indemnifying party of the rights and easements hereby created, or (ii) the breach of any provision of this Agreement by, or the negligent or intentional act or omission of, the indemnifying party, or (iii) the failure of the indemnifying party to comply with all Permits and Legal Requirements in connection with the exercise of its rights or obligations hereunder, or (iv) the discharge or release of “Hazardous Substances” by the indemnifying party on the land of the other Party. For the purposes of this Paragraph 6(b), the term “the indemnifying Party” shall mean AY Holding and BP Watertown Retail, and their respective employees, agents and contractors. (c) 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, by-laws, 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 21E and the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended (42 U.S.C. Sections 9601 et seq.) 7.Successors and Assigns/Binding Nature. As used herein, the terms “Primary Trustees”, “AY Holding”, “BP Watertown Retail” and the “Town” 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 Condominium Land, the AY Project or the Town’s Land, respectively, or any portions thereof. 8.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, and each Party hereby expressly reserves the right to use the portions of its land burdened by the easements granted herein for all uses not inconsistent with the easements granted herein. 00981566.4 9 9.Mechanics’ Liens. Prior to the commencement by or on behalf of any Party of any work on an Easement Area within the land of another Party under this Agreement, the Party performing such work shall notify all of its contractors (and shall cause its contractors to notify all of their 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 another 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. 10. Release. (a) The Town, on behalf of itself and all parties claiming by, through or under it, hereby releases the AY Parties (which, for the purposes of this Paragraph, shall include the officers, directors, partners, trustees, beneficiaries, members, managers, employees, agents, tenants, and contractors of the AY Parties (collectively, including the AY Parties, the “AY Released Parties”)) from, and hereby waives and agrees not to make any claim against any AY 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 Town’s Construction Access Easement Area at any time or from time to time. (b) The AY Parties, on behalf of themselves and all parties claiming by, through or under them, hereby release the Town (which, for the purposes of this Paragraph, shall include the employees, agents, and contractors of the Town (collectively, including the Town, the “Town Released Parties”)) from, and hereby waive and agree not to make any claim against any Town 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 Construction Access Easement Area or the AY Hardscape Construction Easement Area or the BP Watertown Retail Construction Support Easement Area at any time or from time to time. 11. No Personal Liability. 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. 00981566.4 10 12. 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 any other Party in order to better assure the rights and obligations herein created. 13. 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. 14. 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 a Party from the prompt payment of any monies to be paid pursuant to this Agreement. 15. Not a Public Dedication. Nothing herein contained shall be deemed to be a gift or dedication of any portion of the Condominium Land or the AY Project to the Town or the general public for any public use or purpose whatsoever. 16. 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: AY Parties: 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 00981566.4 11 Boston, MA 02110 Attention: Peter Friedenberg, Esq. The Town: Michael J. Driscoll, Town Manager Town of Watertown 149 Main Street Watertown, MA 02472 With a copy to: Mark R. Reich, Esq. KP Law, P.C. 101 Arch Street, 12th 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. 17. Waiver. Any waiver by any 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. 18. Representations and Warranties. (a) The Town hereby represents and warrants to the AY Parties as follows: (1) all approvals of the Town required for the execution of this Agreement and the performance by the Town 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 the Town; and (3) this Agreement, when fully executed and delivered by the Parties, shall constitute the valid and binding obligation of the Town, subject to general equitable principles. (b) The Primary Trustees, in their capacity as Primary Trustees and not individually, hereby represent and warrant to the Town 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. 00981566.4 12 (c) AY Holding hereby represents and warrants to the Town 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. (d) BP Watertown Retail hereby represents and warrants to the Town as follows: (1) all approvals by any member or manager of BP Watertown Retail required for the execution of this Agreement and the performance by BP Watertown Retail 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 BP Watertown Retail; and (3) this Agreement, when fully executed and delivered by the Parties, shall constitute the valid and binding obligation of BP Watertown Retail, subject to general equitable principles. 19. 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 there are no representations, warranties, covenants or agreements, express or implied, with respect to the subject matter hereof, 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 the AY Parties and the Town, 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. 20. Counterparts. This Agreement may be executed in counterparts, each of which 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] [AY Parties’ Signature Page to Temporary Construction Access Easement Agreement] 00981566.4 Executed as an instrument under seal as of the date first set forth above. AY PARTIES: 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: [AY Parties’ Signature Page to Temporary Construction Access Easement Agreement] 00981566.4 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: [AY Parties’ Signature Page to Temporary Construction Access Easement Agreement] 00981566.4 Executed as an instrument under seal as of the date first set forth above. AY PARTIES: 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 liabilitycompany, 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 William P. McQuillan, 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: [AY Parties’ Signature Page to Temporary Construction Access Easement Agreement] 00981566.4 Executed as an instrument under seal as of the date first set forth above. AY PARTIES: BP WATERTOWN RETAIL LLC, a Delaware limited liability company, By: BP/Arsenal Group LLC, a Delaware limited liabilitycompany, 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 William P. McQuillan, 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, 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: [The Town Signature Page to Temporary Construction Access Easement Agreement] 00981566.4 Executed as an instrument under seal as of the date first set forth above. THE TOWN: 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: 00981566.4 Exhibit A Plan of the AY Construction Access Easement Area [See attached plan] RJO'CONNELL& ASSOCIATES, INC. CIVIL ENGINEERS, SURVEYORS & LAND PLANNERS 0 GRAPHIC SCALE IN FEET 40 20 40 80 EX-A {00052542.DOC / 2} 00981566.4 Exhibit B Plan of the Town’s Construction Access Easement Area [See attached plan] RJO'CONNELL& ASSOCIATES, INC. CIVIL ENGINEERS, SURVEYORS & LAND PLANNERS 0 GRAPHIC SCALE IN FEET 60 30 60 120 24 EX-B {00052542.DOC / 2} 00981566.4 Exhibit C Plan of the AY Hardscape Construction Easement Area [See attached plan] RJO'CONNELL& ASSOCIATES, INC. CIVIL ENGINEERS, SURVEYORS & LAND PLANNERS 0 GRAPHIC SCALE IN FEET 40 20 40 80 EX-C {00052542.DOC / 2} 00981566.4 Exhibit D Plan of the BP Watertown Retail Construction Support Easement Area [See attached plan] 1�1 �z� i ;K) - 40'± HORIZONTAL - EXISTING GRADE CUT SLOPE AT TOP OF S.O.E. I 5'± 15' 7 S.O.E. BOTTOM OF EXCAVATION PROPOSED DRILLED & GROUTED TIE -BACK ±4" DIAMETER DRILL HOLE FILLED WITH GROUT AROUND A 1.5" DIAMETER TENDON ROD (TYP.) ILLUSTRATIVE SECTION n1s. DEPTH OF TIE -BACK RELATIVE TO TOP OF SHORING AND THE DRILLING ANGLE CAN BE ADJUSTED TO AVOID POTENTIAL CONFLICTS WITH EXISTING OR PROPOSED UTILITIES OR OBSTRUCTIONS. EXISTING BUILDING 'F' �� v-- PROPERTY LINE 1= a 46 .SSO0SO0 PLAN VIEW 100 FORGE - BUILDING G SCALE: 1 =10' Watertown, Massachusetts PROPOSED SOE TIE -BACK PLAN 0' 10' 20' 30' SCALE: 1 "=10' July 28, 2020 SHEET 1 OF 1