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HomeMy WebLinkAbout20160419 Decision/license agreement - Legal Document - 2302 TURNPIKE STREET 7/13/2016 Space above the line reserved for recording information LICENSE AGREEMENT THIS LICENSE AGREEMENT (the "Agreement") is made as of July , 2016 by and between the TOWN OF NORTH ANDOVER (the "Licensor" or the "Town"), a municipal corporation with a mailing address of 1600 Osgood Street, Suite 2043, North Andover, MA 01845, and GILL FAMILY LLC (the "Licensee"), a Massachusetts limited liability company with a mailing address of 23 Ash Street, North Andover, MA 01845. WHEREAS,the Licensee applied for and received from the North Andover Planning Board (the w "Board") a Site Plan Special Permit (the "Permit"), dated April 19, 2016 and recorded with the LU Essex North Registry of Deeds in Book 14627, Page 03,to develop and operate a commercial ,`i complex (the "Project") at 2302 Turnpike Street, North Andover, MA (the "Premises"), as a further described in a deed recorded with said Registry in Book 13760, Page 252; z W WHEREAS, the Licensee also required relief from the North Andover Conservation Commission o (the "Commission") in order to construct the Project and therefore applied for and received from the Commission an Order of Conditions (the "Order"), dated April 14, 2016 and recorded °i with said Registry of Deeds in Book 14653, Page 131; O o WHEREAS, the Premises is a corner lot with frontage along Turnpike Street and Sharpners Pond z Road: z WHEREAS, the layout of Sharpners Pond Road, which is owned by the Town, measures one O hundred and fifty(150') feet wide and extends along the entire easterly boundary of the z Premises; O �— WHEREAS, the traveled and paved area within Sharpners Pond Road is in excess of seventy-five feet (75')from the front boundary of the Premises, which leaves an open area of land owned by the Town (the "Licensed Premises") along the entire frontage of the Premises that measures seventy-five feet (75')wide and four hundred thirty eight feet (438') long all as shown on an excerpt from the plans approved as part of the Permit, a copy of which is attached hereto as Exhibit A; WHEREAS, the Permit issued by the Board and the Order issued by the Commission contain a condition that the Licensee install and maintain a low impact development structure (the "Rain Garden") as proposed by the Licensee within the Licensed Premises and shown on Exhibit A as a part of the Stormwater Management System for the Project; WHEREAS, the Permit and Order contain conditions that the Licensee maintain the Rain Garden in compliance with the terms and conditions of an operations and maintenance plan (the "O&M Plan"), attached hereto and incorporated herein as Exhibit B; License Agreement 2302 Turnpike Street,North Andover Page 2 WHEREAS,the Licensee accepted all of the conditions set forth in the Permit and Order and agreed to enter into this Agreement regarding its use and improvements to the Licensed Premises. NOW THEREFORE, in consideration of the covenants and agreements herein set forth and other good and lawful consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto, intending to be legally bound, agree as follows: 1. The License Grant• Permitted Uses. The Town hereby grants to Licensee a non- exclusive, revocable license to use the Licensed Premises in accordance with this Agreement as follows: a. to travel by any means on, over, and under the Licensed Premises for the sole purpose of accessing the Premises for the purpose of conducting the activities authorized by the Permit and the Order, and maintaining the Licensed Premises in compliance with this Agreement; b. to clear, regrade, landscape, improve, but only in the manner authorized and described in the Permit and the Order and as shown on the Plans approved with the Permit and the Order and otherwise maintain the Licensed Premises in first class condition as described in the Permit and keep it free from debris; c. to improve the Licensed Premises in accordance with the Permit and Order and to place and maintain within the Licensed Premises access drives and utility connections and other appurtenances associated therewith only as shown on the approved Plans submitted by the Licensee to the Board and the Commission; and d. to construct, plant, operate, maintain, repair, replace and replant the Rain Garden in the Licensed Premises in substantial compliance with the O&M Plan and as shown on the Plans approved with the Permit and the Order. 2. THIS AGREEMENT IS SOLELY FOR THE BENEFIT OF LICENSEE AND ITS SUCCESSORS AND ASSIGNS. ALL ACTIVITY WITHIN LICENSED PREMISES SHALL BE CONDUCTED IN FULL COMPLIANCE WITH THIS AGREEMENT AND THE PERMIT AND ORDER. IN THE EVENT THE PERMIT OR ORDER SHALL LAPSE OR TERMINATE, THEN THIS AGREEMENT SHALL TERMINATE AND NO LONGER BE OF ANY FORCE OR EFFECT. 3. If the Licensee fails to maintain the Rain Garden or any access drives, utility connections and other appurtenances referred to herein and shown on the approved Plans in accordance with the requirements of the Permit and the Order, then the Town shall have the right, but not the obligation, hereunder to complete the maintenance and charge the Licensee for the costs incurred by the Town. The Town shall have the right to use all legal procedures allowed it under the law to secure such reimbursement. The Licensee consents to the Town having the right, after fourteen days written notice to said Licensee, its heirs, executors or assigns to place a lien upon the property of the Licensee for all such unreimbursed expenses. License Agreement 2302 Turnpike Street North Andover Page 3 4. Prohibited Uses. Licensor and Licensee hereby agree and acknowledge that the following uses are strictly prohibited by the Licensee within the Licensed Premises: e. the construction of any buildings; f. the construction of any improvements that are not shown on the plans attached to the Permit and approved by the Board, without the express written consent of the Board; or g. the operation of any business. 5. Licensor's Reserved Rights. Notwithstanding anything herein to the contrary, Licensor shall have the right to access the Licensed Premises for any purpose, including but not limited to the purpose of inspecting the area and to confirm that the Licensee is complying with the terms of this Agreement, the Permit and the Order. 6. Indemnification. To the greatest extent permitted by law Licensee covenants and agrees that it shall assume the defense of, with counsel satisfactory to Licensor, indemnify and hold harmless the Town, and its agents and employees, successors, insurers, attorneys, administrators and all other representatives (collectively "the Indemnitees") of, from and against any and all losses and claims, liabilities, demands, payments, suits, actions for damages, recoveries and judgments of every nature and description whether sounding in tort or otherwise , including, without limitation, reasonable attorney's fees and costs of investigation and litigation (collectively the "Losses") related to or arising from or in any way connected with use of the Licensed Premises by the Licensee or its agents, employees, and contractors or any violation or alleged violation of any federal, state, or local rule, regulation or any law in any way related to the Licensed Premises or this Agreement, regardless of whether or not it is caused in part by a party indemnified hereunder.The duty to defend shall immediately accrue and be owing upon the utterance of such a claim by any person or entity regardless of merit and shall not be dependent upon a finding of negligence or any other finding of fact at trial. The duty to defend shall be absolute and will include and shall not be defeated or in any way undermined by the utterance of claims not covered by this Agreement. 7. Insurance. From the commencement of this Agreement through its termination or revocation by Licensor, Licensee shall provide and maintain, at its own expense, a commercial general liability insurance policy issued by an insurance company licensed to do business in the Commonwealth of Massachusetts with an A.M. Best rating of A-that provides commercial liability coverage with limits of$1,000,000 per occurrence and $2,000,000 in the aggregate for bodily injury and property damage and naming the Town as an additional insured. The Licensee shall provide the Licensor with a Certificate of such insurance and endorsement upon the execution of this Agreement and before commencing any work on the Licensed Premises, and shall provide such Endorsements or copies of such policies as requested by the Licensor. 8. Revocation. Licensor and Licensee covenant and agree that this Agreement is not an interest in land and is revocable by the Licensor for any reason whatsoever upon forty-five (45) License Agreement 2302 Turnpike Street,North Andover Page 4 days written notice to the Licensee from the Town. The License will terminate forty-five (45) days after the Licensee's receipt of said written notice described herein. In such event,the Licensee shall, to the extent required by the Planning Board or Conservation Commission, amend its storm water management permit to address said revocation. The revocation of this Agreement by the Town shall not constitute a revocation of the Permit or Order, and shall not impose a duty on the Town or the Department of Public Works to maintain the Rain Garden. Said Notice shall be sufficient if sent according to the notice provisions of this Agreement. 9. Upon such termination,the Licensee shall remove any and all construction equipment and temporary work. If Town land is disturbed, then following termination of the License, the Licensee shall promptly put the Town land in a safe and stable condition and consistent with any directions or specifications of the Town that are not inconsistent with the Permit and Order, all at Licensee's expense. Licensee acknowledges, covenants and agrees that this License is revocable at will by the Town as set forth herein and the Licensee further acknowledges, covenants and stipulates that in the event of such revocation,the Licensee shall have no recourse or claim against the Town for such revocation whether by way of monetary charges, a suit in equity, or otherwise. Accordingly, in the event the Permit is abandoned or the Board, the Commission or the zoning enforcement officer determines that the terms and conditions of the Permit or Order have been violated and that a final determination by a court of competent jurisdiction confirms such determination or there is no appeal of such determination, and the Permit or Order is annulled then this Agreement shall be terminated and Licensee shall no longer possess any rights hereunder. 10. Amendment. This Agreement constitutes the entire agreement between Licensor and Licensee and supersedes all prior and contemporaneous agreements, representations, and understandings, and it may be amended only by an instrument in writing signed by both parties. 11. Any activities within the Licensed Premises shall be in conformity with the applicable provisions of the Town of North Andover's Bylaws, and subject to any necessary approvals of the Town's Conservation Commission and Planning Board. 12. Assignment. This Agreement may not be assigned without the prior written consent of the Licensor acting by the Board of Selectmen which consent shall not be unreasonably withheld or delayed and provided that any assignee agrees in writing to comply with the terms of the Permit and Order and to maintain the Licensed Premises in compliance with this Agreement. 13. All notices required or permitted to be given hereunder shall be in writing and addressed to the parties, and to the attorney for the respective parties, at the addresses set forth below, or to such other address or facsimile number as may, from time to time, be designated by the intended recipient thereof by advance written notice to the other parties. All such notices shall be hand delivered, or mailed by registered or certified mail, postage prepaid, return receipt requested or by Federal Express or other recognized overnight courier,telexed or License Agreement 2302 Turnpike Street,North Andover Page 5 faxed, addressed as aforesaid and shall be effective, if hand delivered, upon delivery; if mailed, when received; if telexed or faxed, when transmitted with receipt acknowledged. All notices shall be sent as follows: IF TO TOWN OF NORTH ANDOVER: IF TO LICENSEE: Town of North Andover Gill Family LLC 1600 Osgood Street 23 Ash Street North Andover, MA 01845 North Andover, MA 01845 Attention: Town Manager Attention: Danny Gill 14. If any term, provision, covenant or condition of this License is held by a court of competent jurisdiction to be invalid, void or unenforceable,the rest of this License Agreement shall remain in full force and effect and shall in no way be affected, impaired or invalidated. 15. If the Licensee does not comply with any provision of this License Agreement, then the Licensee shall pay the Town for all damages and costs, including attorneys' fees, which the Town may incur as a result of the Licensee's noncompliance 16. This License is governed by the laws of the Commonwealth of Massachusetts. [Signatures appear on the following page] License Agreement 2302 Turnpike Street,North Andover Page 6 NORTH ANDOVER BOARD OF SELECTMEN By: _.�� 'l. r� 'RICHARD VAILLANCOURT, CHAIRMAN COMMONWEALTH OF MASSACHUSETTS Essex,ss. On this day of July 2016, before me, the undersigned notary public, personally appeared RICHARD VAILLANGOURT ,, as Chairman of the North Andover Board of Selectmen who proved to me through satisfactory evidence of identification, which was his/her driver's license, to be the person whose name is signed on the foregoing instrument, and acknowledged to me that she signed it voluntarily at the direction of the Board for its stated purpose. ar,e_ (d, &1,4L N Public My commission expires: / />, /l/ dD/V GILL FAMILY, LLC =4F SHAW lic By: A SACHOSETTS DaTj' yGif, anager 018es COMMONWEALTH OF MASSACHUSETTS Essex, ss. /l On this 7 d y of July 2016, before me, the undersigned notary public, personally appeared Danny Gill, as Manager of the Gill Family LLC who proved to me through satisfactory evidence of identification, which was his driver's license, to be the person whose name is signed on the foregoing instrument, and acknowledged to me that he signed it volunta ily f r its st`�ted purpose. Notary Pu I' ill E. Mann My com i sion expires: January 25, 2019 L\ JILL E. MANN * Notary Public IJ COMMONWEALTH OF MASSACHUSETTS My Commission Expires nt tan,25,201-0 CERTIFICATE OF COMPLIANCE WITH TAX LAWS Pursuant to Massachusetts General Laws Chapter 62C, Section 49A, I certify under the penalties of perjury that GILL FAMILY LLC has filed all required Massachusetts state tax returns; has complied with all Massachusetts laws relating to taxes,reporting of employees and contractors,withholding and remitting child support; and has paid all Massachusetts state taxes required under law. GILL FAMILY LLC 81-2393490 Tax Identification Number By: Danny Gill, pager Date CERTIFICATE OF NON-COLLUSION The undersigned certifies under penalties of perjury that this contract is in all respects bona fide, fair and made without collusion or fraud with any other person. As used in this section the word "Person" shall mean any natural person,joint venture,partnership, corporation or other business or legal entity. GILL FAMILY LLC By: De--�A, _&� Danny r , Manager c:\users\danny\downloads\certificate of compliance with tax laws.doc