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