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HomeMy WebLinkAboutLegal Document - 160 FLAGSHIP DRIVE 12/29/1997 TEMPORARY LANDSCAPE AND GRADING EASEMENT This Temporary Landscape and Grading Easement and Agreement("Agreement") is made as of this day o �_ ' � � , 1997, by and between PAUL J. KNEELAND, TRUSTEE OF BUSINESS PARK REALTY TRUST u/d/t dated April 25, 1985 and recorded with the Essex North District Registry of Deeds in Book 1962, Page 50, as amended (`Business Park Trust"), having a mailing address of c/o Channel Building Company, Inc., 355 Middlesex Avenue, Wilmington, Massachusetts 01887, and ALAN W. BURNHAM, F. JOSEPH LINGEL, and ROBERT W. SHEA, TRUSTEES OF UNITED REALTY TRUST u/d/t dated November 23, 1993, and recorded with said Deeds at Book 3909, Page 117 ("United Trust"). RECITALS WHEREAS, Business Park Trust is the owner of land located at the intersection of Flagship Drive and Willow Street South Extension,North Andover, Essex County, Massachusetts, which property is more particularly shown as Map 25, Lot 75 (the "Business Park Property") on a plan entitled"Grading and Utilities Plan,Assessors Map 25--Lot 75, Flagship Drive,North Andover, Massachusetts 01845 prepared for: Channel Building Company, Inc., 355 Middlesex Avenue, Wilmington, Massachusetts 01887," dated July 28, 1997 (the "Plan"). WHEREAS, United Trust is the owner of land immediately adjoining the Business Park Property, which land is shown as Map 25, Lot 85, on the Plan known as 165 Flagship Drive, North Andover, Massachusetts (the "United Trust Property"); WHEREAS, Business Park Trust wishes to develop the Business Park Property with certain building and accessory improvements requiring Business Park Trust to carryout grading 1 and to install, maintain, replace and relocate shrubbery, trees, and other landscaping on the United Trust Property; WHEREAS, Business Park Trust and United Trust each desire to confirm arrangements for work to be performed on the Business Park Property and the United Trust Property in connection with the development of the Business Park Property; NOW THEREFORE, in consideration of the mutual promises contained herein and other good and valuable consideration,the receipt and sufficiency of which is hereby acknowledged, the parties hereto agree as follows: AGREEMENTS 1. United Trust hereby grants to Business Park Trust for Business Park Trust's benefit and the benefit of all persons claiming by, through or under Business Park Trust,which shall include, for purposes of this Agreement, without limitation, all employees and agents of Business Park Trust, subject to the terms and provisions of this Agreement, for the appurtenant benefit of the Business Park Trust Property,the following: (a) a temporary easement, for a period of two (2)years from the date hereof(the "Easement Period"), for slope and grading in, over, and across an area forty (40) feet wide at the eastern property line of the United Trust Property, as shown on the Plan(the "Easement Area"), for the purpose of creating an appropriate gradient(including lateral support) between the Business Park Property and the United Trust Property, which easement shall include the right to remove or place solid fill, loam and seed and to do other necessary and appropriate work to fulfill said purposes, including specifically the right to enter upon the United Trust 2 I Property from time to time for ingress and egress during construction and maintenance; and (b) a temporary easement, also for the Easement Period,to install, maintain, inspect, replace, and relocate trees, shrubs, and other landscaping from time to time in the Easement Area. , 2. Any work undertaken on or in respect of the United Trust Property incident to the exercise of the rights and easements granted in this instrument(the"Easement Work") shall be diligently prosecuted to completion and performed in a good and workmanlike manner, free of liens for labor and materials, and shall be paid for by Business Park Trust. The Easement Work shall not violate any recorded covenant or restriction placed upon the United Trust Property by Business Park Trust, and Business Park Trust shall deliver to United Trust, within a reasonable time following the completion of the Easement Work, a statement, in recordable form, stating that the Easement Work does not violate any recorded covenant or restriction placed upon the United Trust Property by Business Park Trust. Business Park Trust shall provide ample prior notice to United Trust as to the scheduled time and nature of any such work. Business Park Trust shall be responsible, at its sole cost and expense, for obtaining all approvals and permits from the Town of North Andover necessary for the performance and completion of the Easement Work. Prior to commencement of the Easement Work, Business Park Trust agrees to provide United Trust with certificates of insurance naming United Trust as an additional insured on all liability policies, workers' compensation policies, and other policies in effect during the performance of the Easement Work. Business Park Trust shall indemnify and hold United Trust harmless from and against any and all claims and expenses, including litigation expenses and attorneys' fees, arising 3 out of the Easement Work. The foregoing obligations shall be binding upon the heirs, successors, and assigns of Business Park Trust. 3. If Business Park Trust shall desire during the Easement Period to replace and/or add to any landscaping which it has installed within the Easement Area, it shall do so in a manner consistent with the provisions of Sections 1 and 2 hereof and only after obtaining the prior written approval of the United-Trust. 4. United Trust expressly reserves to itself and its successors and assigns the right to use, or grant to others, the surface and subsurface of the Easement Area for any and all purposes, so long as such purposes do not materially interfere with the rights granted herein to Business Park Trust for the Easement Period. 5. This Agreement and the rights contained herein, including any and all changes or modifications that may be made, shall be binding upon and inure to the benefit of, the parties and their respective heirs, successors and assigns and nothing contained herein will be deemed or construed as a waiver or modification of any other or greater right contained in any other agreement previously entered into by the parties. All rights and obligations of the parties hereunder(except for the obligations of Business Park Trust, its successors and assigns, with respect to municipal approvals, insurance, and indemnification, which shall remain in effect until the time for claims under the applicable statute of limitations, including any discovery periods, have expired, and the time for objections by municipalities has expired) shall automatically expire at the end of the Easement Period, unless such Easement Period is extended by a separate recorded instrument executed by both such parties. In the event that the Business Park Property is conveyed, Business Park Trust shall remain liable for its obligations hereunder until the expiration of the Easement Period (except with respect to municipal approvals, insurance, and 4 indemnification, which shall remain in effect until the time for claims under the applicable statute of limitations, including any discovery periods, have expired, and the time for objections by municipalities has expired). 6. Immediately following the full execution of this Agreement, Business Park Trust shall pay a bond in the amount of Five Thousand and No 00/100 Dollars ($5,000.00) (the "Bond") to guarantee the performance of the Easement Work as provided herein. The Bond shall be held and controlled, as specified in this Agreement, by Denis J. Sullivan, Esquire, counsel for United Trust, (for the purposes hereof, the "Escrow Agent"). It is understood and agreed that the Escrow Agent shall promptly, when collected by him, place the Bond in an interest-bearing account at a Boston-area bank, trust company or institutional depositary. Upon proper completion of the Easement Work as herein provided, the Bond, and all interest which has been earned on the Bond, shall be returned to Business Park Trust. In the event of any dispute relating to the right of possession or the disposition of the Bond, the Escrow Agent will retain dominion and control over the same until such dispute shall have been settled by mutual agreement of the parties with notice thereof to Escrow Agent, whereupon the Bond will be paid over in accordance with such mutual agreement of the parties; or, if such dispute is taken to a court of competent jurisdiction, the Bond will be paid over into the custody of such court or otherwise paid over in accordance with the final order, decree or judgment of such court. 7. The covenants and agreements created hereby are intended to be, and shall be deemed to be, covenants running with the land and are not personal to any individual party. 5 8. All notices and other communications to be given in connection with this Agreement shall be in writing and shall be deemed given and delivered when mailed by registered or certified mail, postage prepaid,return receipt requested, addressed to such party at the respective addresses set forth in the introductory paragraph above. IN WITNESS WHEREOF, the parties hereto have executed this instrument under seal as of the date first above vwritten. BUS SPARK RE LTY TRUST By: Pail J. Kneel d, ustee and not individually UNITED REALTY TRUST elan W. Burnham, Trustee and indi 11 J qs6ph Lingel, Trustee and t individually B s Robert W. Shea, Trustee and not individually 6 COMMONWEALTH OF MASSACHUSETTS , Ilpq gS y , ss 17 ILt , 1997 Then personally appeared the above-named Paul J. Kneeland, Trustee as aforesaid, and acknowledged the foregoing instrument to be his free act and deed, before me, Notary bli My Co mis on Expires: COMMONWEALTH OF MASSACHUSETTS E7<;Sex , ss La ';� , 1997 Then personally appeared the above-named F. Joseph Lingel, Trustee as aforesaid, and acknowledged the foregoing instrument to be his free act and deed,before me. Notary Public My Commission Expires: COMMONWEALTH OF MASSACHUSETTS �S's k , ss 9 , 1997 Then personally appeared the above-named Robert W. Shea, Trustee as aforesaid, and acknowledged the foregoing instrument to be his free act and deed,before me. Notary Public My Commission Expires: 7 COMMONWEALTH OF MASSACHUSETTS C'y, , ss /oZ , 1997 Then personally appeared the above-named Alan W. Burnham, Trustee as aforesaid and acknowledged the foregoing instrument to be his free act and deed, before me, Notary Public My Commission Expires: Jennifer L. Bill NOTARY PUBLIC 236256-9 Icy commission UP.Jun 15,2001 8