HomeMy WebLinkAbout1992-12-22 Legal Docs L W
11/30/93
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DECLARATION AND TERMINATION OF EASEMENTS
THIS VP DECLARATION AND TERMINATION OF EASEMENTS, dateQ& of
this day of December , 1993 ( the "Declaration" ) by And among
NORTH-WAVER MILLS REALTY, a Massachusetts Limited Partnership,
( the "Partnarship" ) with an address at c/o U .S. Managers Realty
Co . , 433 North Camden Drive, Beverly Hills , California 90210 , and
JOHN J . NOLAN and ERNEST A. GRALIA , III , as TRUSTEES of ELM MILL
REALTY TRUST under DoolaratioR of Trust dated December 28 , 1992 ,
recorded with Essex North District Registry of Deeds ( the
"Registry" ) in Book 3675 , Page 247 , ( the "Trustees" ) with an
address at 200 North Main Street , East Longmeadow,
Massachusetts 01028 .
W I T N E S S. E T H
WHEREAS, the Partnershipowns certain property in North
Andover , Essex County, Massachusetts shown on the Plan hereinafter
defined ( hereinafter "Lot 1" ) ; and
WHEREAS, the Trustees own certain property in North Andover ,
Essex County, Massachusetts shown on the Plan hereinafter defined
( hereinafter "Lot 2" ) ; and
WHEREAS, by grant [ the "Original Roadway Easement" ) dated
September 10 , 1973 and recorded with the Registry in Book 1234 ,
Page 11, easement rights were granted over Lot I to Lot 2 in an
area designated "25 ft . Right of Way" on a plan recorded with the
Registry as Plan No . 6928 ; and
WHEREAS , the Partnership and the Trustees are desirous, V
entering into this Declaration in order to terminate the Oriainal
Roadway Easement and to create a new casement ( the "New Roadway
Easement" ) gubstantially in the location shown on a preliminary
plan entitled "Andover Mills/Osgood Mills Acce,55 Concept Plan" ,
Option "A" , dated October 14 , 1993 prepared by Vanasse Hangers
Brustlin, Inn , ( the ""Plan"" ) attached hereto as Exhibit A and made
a part hereof .
NOW, TaEREFORE, the Partnership and the Trustees A
consideration of the mutual covenants and aromises expres5ed
herein , the sufficiency of which are hereby acknowledgad, hereby
agree as follows :
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1 . The Partnership shall at the Partnership' s sole cost and
expense cause to be prepared a definitive plan in recordable farm
showing in appropriate detail the location of the New Roadway
Easement which shall be recorded in the Registry simultaneously
with the certificate of completion referred to in paragraph 3
hereof , and , when recorded in the Registry , shall supercede
Exhibit A attached hereto (or Exhibit A-1 attached hereto in the
event the Partnership has exercised the option set forth below)
and become the Plan . Subject to and in accordance with the terns
and conditions o€ this Declaration, the Partnership does hereby
grant to the Trustees the right and easement in common with the
Partnership to ose the New Roadway Easement as appurtenant to
Lot 2 , situated on land of the Partnership in North Andover , Essex
County, Massachusetts ar'sd shown on the Plan , for all purpvses for
which streets and days are now or may hereafter customarily be
used in said North Andover except as herein set forth.
The Partnership may at its option relocate the New Roadway
Easement to the location on Lot 1 shown on a preliminary plan
entitled "Andover Mills oegood dills Access Concept Plan" , Option
"B" , dated October 14 , 1993 prepared by Vanasse Hanger 8rust.liJ ,
Inc . ( the "Option Plan" ) attached hereto as Exhibit A-1 and .made a
part hereof, by delivering wri,tterk notice thereof to the Trustees
within thirty ( 301 days from the date of this Declaration,
provided that the Partnership shall be responsible for all costs
associated with such relocation beyond the 'trustees ' required
contribution set forth in paragraph 6 hereof . Following
completion of the Improveinents (Hereinafter defined) the
Partner5h;p shaLl have the farther right , at its election and at
its sale cost and expense, to relocate the New Roadway Easement to
another location on rot 1 , provided that : any such relocated
easement enters Lot 2 at the location where the Improvements were
constr�icted or , a- the Partnership' s election, at --he other
location shown on Exhibit A or Exhibit A-1 ( as the case may be }
provided that the Partnership makes the necessary and appropriate
alterations tc the Trustees ' parking lot to accommodate the
relocated Roadway Easement ; the Partnership has obtained the prior
written consent ( if required) of the Boston-Maine oippQratior_ aiT-n
respect to the relocated Road;aav Easement ; and the relocated
Roadway Easeirtent is built to the same standards as are set forth
below with respect to the improvements .
No vehicles shall at any time be paned by the Trustees
withiq the New Roadway Easement ar any cf the areas ad acent
thereto. In the event any vehicles are paned by the T ustees in
the NETq Roadway Easement , the Partnership shall have the rig-it to
cause thein to be towed away and add the cost thereof to the
maintenance costs referrers to in paragraph 7 hereof . it is the
intent of the parties that the New Roadway Easement shall not be
used for pedestrian passage or bicycle traffic and either party
may implement reasonable measures to further such intent . Except
to the extent set forth in paragraphs 9 . and 10 . hereof , the
Trustees shall not be Liable in the event that the New Roadway
Easement is used for pedestrian passage or bicycle traffio.
Further , the occurrence of the events proscribed above in this
paragraph shall not result in a termination of the rights granted
to the Trustees in this Declaration .
All of the Trustees ` right , title and interest in and to the
Original Roadway Easement and the New Roadway Easement shall be
relinquished, released and terminated ( except the Trustees ' rights
under paragraph 2 hereof with respect to utility lines serving Lot
already they: installed) without further action by the Trustees
upon the construction and completion by the Town of North Andover
of a public access road from Sutton Street ;ahich is available for
unqualified and uninterrupted use by the Trustees, the occupants
Qf Lot 2 and their guests and invitees .
2 , The Tres steel and their successors and asstgr.s shall have
the right at all reasonable times and in a reasonable manner to
enter upon the New Roadway Easement and to perform excavation and
such other work in the New Roadway Easement as may be reasonably
necessary for the purpose oP installing, operax`,Tig, maintaining,
repairing, removing , replaQing and iftspecting any utility lines
serving LQt 2 . Upon completion! of such work the Trustees shall
restore the surface of the easement area to substantially the sate
condition as existed p)cior thereto . In the event the Trustees
fail to perform or cortLmEence to perform and di-ligently pursue to
completion their obligations in this paragraph following five ( 5 )
business days war itten notice, the Partnership shall Have the right
tQ perform such obligations and add the. casts thereof to the
maintenance costs referred to in paragraph 7 hereof . Such work
shall he performed in a manner and at a trite as will cause as
It tle disruption to the operations of the Parcnership and its
tenants as is reasonably possible , The partnership shall have he
right to relocate such utiiity lines at its sole cost and expense
so long as the relocated utility lines provide substantially the
same f! nctionai service as existed previously ,
3 . In conside:ati.ori cf the aforement .oned grant of the qes,;
Roadway Easement the Trustees relinquish and release all of their
ricrk3t , title ar.d interest, in and to -he Original Roadway Easement
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and terminate said original Roadway Fasement, such relinquishment,
release and termination to become effective when the Improvements
( hereinafter defined) in the New Roadway Easement have been
completed in accordance with paragraph G , below except Ear so
called "punch list" type items and are ready for use , which
completion shall be evidenced by a certificate of such completion
executed by an independent architect or engineer and recorded with
the Registry. Until such relinquishment , release and termination
become effective, as evidenced by the recording of the
aferementioned certificate, the Trustees shall continue
have,,
the legal right �o use the Original Roadway Easement .Li i #
4 . The Trustees ' use of the New Roadway Easement and the
rights and easements granted in paragraph 2. above shall at all ,-
times be in compliance with all applicable laws , codes and
ordinances .
5 . The Partnership shall have no Obligation to obtain any
approvals of governmental authorities in connection with the Trustees ' use of the New Roadway Easement .
5 . As promptly as passible the Partnership shall at the
Partnership ' s sole cost and expense cause to be prepared
appropriate construction drawings and specifications
( "Constructions Documents" ) for the construction of the
improvements constituting the new roadway within the Me%4 Roadway
Easement which shall be consistent with and a logical extension of
the Plan for the Option Flan in the event the Partnership has
exercised the option descr =bed in paragraph 1 , hereof ) and the
Construction Schedule attached hereto and marked Exhibit B and
made a part hereof ( herein the " Improvements" ) . The Partnership
shall at the Partnership ' s sole cost and expense except as set
forth herein construct the Improvements its the New Roadway
Easement Subject to the following terns and conditions ; all work
will be dote diligently its a workmanlike manner using good-quality
materials and in accordance with all lacy: , codes and ordinances ,
the Construction Schedule , the Plan (or the Option Plan in the
extent the Partnership has exercised the option described in
paragraph 1 . hereof ) and the Const-uctioti Documents . The
Partnership will use reasonable e=forts to complete the
I aprovements wic-hin ninety f 90 ) days from the date hereof , subject
to delays occasioned by weather conditions and other causes beyond,
the reasonable control of the Partnership. Once construction has
cacrunenced the Par nE: rship snail diligently prosecute the
construction to ccmDietion . Subject to the foregoing the
Improvements shall be completed by July 1 , 1994 . The Trustees
shall contribute $60 , 000 . 00 the "Contr ibutioti " ) to the cost o£
the Improvements , one-half of which shall be paid to the
Partnership upon commencement of work on the Improvements and the
otter ore-half of which shall be paid to the Partnership when the
lmprovements are completed as evidenced by the certificate
described in paragraph 3 . hereof . The second half of the
contribution shall be delivered to Hinckley , Allen & Snyder upon
commencement of work on the Improvements to be held in escrow and
disbursed in accordance with the foregoing provisions .
7 . The Partnership will use reasonable efforts to (a)
perform the maintenance and repair of the New Roadway Easement
( b) engage a repeatable contractor to provide the service for the
removal of snow and ice f torn the New Roadway Easement and
( c ) maintain landscaping of the New Roadway Easement . The costs
of the foregoing items (a) , ( b) and ( c) (other than grass Lxowing)
plats the costs of electricity used in connection with the New
Roadway Easement shall be shared equally between the parties . The
Trustees shall be responsible for 100% of the costs incurred by
the Partnership as seq. forth in paragraphs 1 . (as it relates
solely to the towing of vehicles ) and 2 . The Partnership shall
submit bills to the Trustees from time to time for the foregoing
casts , together with supporting documentatiQn with such detail as
is reasonably acceptable to the Trustees and the Trustees shall
pay such bills within fifteen ( 15 ) business days .
a . No signs stall be installed or Maintained by the
Trt�stiees within the New Roadway Easement except in accordance with
the Construcl�ion Schedule attached hereto as exhibit B . The
Partnership shall be solely responsible far maintenance of the
approved signs .
9 . The Trustees will defend , indemnify and hold the
Partnership and its tenants and their respective agents ,
employees , officers , directors , sha�,ehclders , partners and
affiliates Cat every level of ownership and interest ) �rarr�less
from all costs , losses , damages , claims and liabilities of any
type ( including, without- limitation, attorneys ' fees and costs)
arising froIq or in ccmnecticn with: ( a ) any breacrtE�s of this
Declaration by the TraGtees and/or airy owners and/or occupants a-F
Lot 2 or their guests or invitees and ( b ) exercise by the Trustees
of their rights udder paragraphs 1 . and 2 . above Including
Limitation any use of the mew Roadway Easement by the Trustees
and/at an owners and/or occuvalits of ;mot 2 or their guests or
Invitees unless in the case of either (a ) or W arising directly
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from the negligence or willful misconduct of the Partnership or
its tenants , employees , agents or invitees .
10 . The 'trustees will at all times carry comprehensive
general liability insurance (broad form C L) with contractual
liability endorsements , including insurance of the Trustees '
indemnities to the Partnership, in an amount not less than
$ , 000, 000 . 00 combined single limit ( increasing from time to time
to amounts customarily carried by owners of similar properties in
the Greater Bostonetoolitn Area ) . If this policy includes a
"general aggregate" Limit , it will be at least two times the
combined single Limit per occurrence .
The Trustees ' liability policy shall be primary and
noncontributing and will name the Partnership and its mortgagees
as additional insureds , shall be wr ittL-n on an "occurrence" basis
and shall provide t4at the insurer will not cancel or modify the
coverage withoiA first giving the Partnership at least
ffifteen ( 15 ) days ' prior written notice . The Trustees waive any
and all claims against the Partnership (but do not waive any ohms
against the tenants of the Partnership) for any damages or perils
covered by any insurance carried or required to be carried by the
' rustees . All carriers shall be authorized and licensed to dv
business in Massachusetts and shall hold a general policy rating
of A-10 or better in the Best Key Rating wide (or the
equivalent ) . The 'trustees shall supply to the Partnership upon
its request copies of such policies or certificates of insurance
certifying that the polio has been issued and complies with this
paragraph 10 .
In the event , and for so long as, the Trustees fail to
maintain irs force the insurance required by this paragraph 10 . or
pail to provide to the Partnership the evidence of such insurance
required by this paragraph 10 . and such failure continues for five
( 5 ) business days after written notice from the Partnership, or
fail to pay 'thy 2 Trustees ' share of the costs of the Improvements
in accordance with paragraph 6 . or of the maintenance costs
d4escribad in paragraph 7 . within the time set forth therein and a
further period of fifteen ( 15) business days after written notice
from the Partnership, the Partnership shall be excused from
performing its obligations under paragraph 7 . until the Trustees
have cured the default described in such notice .
1? The rights , duties , easements and agreements herein
contained.' shall be binding upon and inure to the benefit of the
parties hereto and their respeo}ive successors and assigns ;
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provided, however , that the provisions hereof shall be Minding
upon the parties hereto, or their respective successors and
assigns, only with respect to breaches, acts or omissions
occurring curing the period that the party charged with liability
owns or owned an interest in the property which is the subject
hereof .
12 . The Partnership will defend, indemnify and hold the
Trustees and the occupants of the Trustees ' property and their
respective agents, employees, trustees, beneficiaries , offic-ers ,
directors, shareholders , partners and affiliates ( at ave� y level
of ownerahip and interest ) , guests and invitees harinless from all
costs , losses , damages , claims and liabilities of any type
( including, without limitation, attorneys ' fees and costs ) arising
front or in connection with any breaches of this Declaration by the
Partnership unless arising directly from the neg1igence or willful
misconduct of the Trustees or their tenants , employees , agents o�
invitees .
13 . The Partnership ' s use of the New roadway Eas4�:nent shall
comply with all applicable laws , codes and ordinances .
14 . In the event the Trustees shall create a condominium
regime with respect to Lot 2 pursuant to M.G.L . c . 183A, then the
Partnership shall be entitled to pursue all of its rights and
remedies hf�reunder against the organization of unit owners of the
condominium, without waiving any rights or remedies it may have
against one or more of the unit owners .
15 . This gram of easement by the Partnership is made with
Quitclaim Covenants but otherwise without representations of any
kind and is made subject to all existing utility easements of
record affecting the area of the New Roadway Easement .
16 . in any suit, action or proceeding in connection with
this Declar4tion, including without limitation any suit by the
Partnership to collect amounts clue trom the Trustees as set forth
in paragraph 7 . hereof , the prevailing party shall be entitled to
reasonable attorneys ' fees and costs to be paid by the other
Party .
17 . This is an integrated agreement and there are no
agreements or understandings , oral or written , other that as
specifi`calLy set forth in this Declaration . All modifications to
this Declaration must be in writing and Signed by alL parties .
Whenever by the terms OE this Declaration a 06tice shall or may he
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given either to the Partnership or to the Trustees , such notice
shall be in writing and sham be sent by Federal Express or
similar , reputable express delivery service, or by registered or
certified mail , return receipt requested , postage prepaid:
If intended for the Partnership, addressed to the
Partnership at the address set forth on the first page
of this Declaration, if intended for the Trustees ,
addressed to the Trustees at the address set forth on
the first page of this Declaration or to such other
address or addresses as may from time to time hereafter
be designated by either party by lice notice .
IN WITNESS WHEREOF, intending to be legally bound, the
parties have exec-uteri this Declaration under seal as of the date
set forth above . ��7y��77## �y�+�#"PARTNERSHIP"
NOR zH ANDOVER MILLS REALTY, a
Massachusetts Limited Partnership
By : Niuna,-North Andover , True . , a
Massachiisiet s corporati ,
gene 61 par ner
2y : CIIF Associati�5, a
Massachusetts partnership,
general partner
By ,
Nate
Its Duly Authorised
Principal
L
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"TRUSTEES"
J N NOLAN TR TEE 0/
E L RE TY TRUST
> /
� Sm -. GRALIA, III RUSTLE OF
ELM MILL REALTY TRUST
COMMONWEALTH OF MASSACHUSETTS
Decemb@f t)g]
Then personally a2peared [h@ above-named &)qleT-IAL IqS_R
the of Niuna-North Andover , Inc. . a
Massachusetts corporation, general partner of North Andover mills
Realty, a Massachusetts Limited partnership and acknowledged the
to£@going instrSment to be the Free act and deed of Said
Corporation and said partnership, before me ,
o"ta Public
y co iS3ton @ pl :es = a f. � �99/
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COMMONWEALTH OF MASSACRU TS
sa . December . 1993
Then personally appeared the above-named
of cII
associates , a kassachusetEs partnership, and ack god the
foregoing instrument to be the free act and geed of said
partnership, before me,
Notary Public
my commission expires :
EOMMO§WZktIE OF MASSACHUSETTS
ss December ;V, , 1993
Then personally appeared the above named John J. Nolan and
Ernest A . G£alia , III , Trustees of Elm Mill Realty Ilust and
acknowledged the foregoing to be their Eree act and deed, before
me 'Y & t_0L-'k___
o t a r y public -YAPJET L. �
my commission eynires :�E . q, 199�_
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NO. REVISION DATE APP yi,f-
DE.IENED BY DRAWN BY CHECKED BY
APPROVED BY
SCALD �., DATA � !
PROJECT TITIE ii
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S
Exhibit S
CONSTRUCTION SCHEDULE
The Improvements shall include , without limitation, the
following:
1 . The furnishing of all labor , materials , equipment ,
tools , services , and all other incidentals required to
undertake and complete construction of the new access
road and related work . The new access road skull start
at the access way located on or about the Trustees '
property Line and shall continue through the
Partnership' s property and to the New High Street curb
cut located adjacent to Prescott Street as denoted on
the Pla�i .
The new access road shall be approximately 1 ► 000 lineal
feet in length and shall consist of a thirty ( 301 ) fcot
wide bituminous concrete paved surface with exception to
the approximately 180 lini�al foot High Street entrance
drive which shad be a forty ( 40 ' ) foot wide bituminous
concrete paged surface .
2 . The furnishing and installation of a continuous
bituminous concrete berm, Cape Cod style, along the
entire length of both sides of the new access road (with
exception to the curb cuts as denoted on the Plan) .
3 , The furnishing and installation of a functional and
operational storm drainage system, including without
limitation any design, rem4�diation and improvemen�s
necessary to resoive any storm drainage problems on the
New Roadway Easement and the Partnership' s parking lot
arising on account of the Improvements .
4. The furnishing and installation of a 6 foot minimum
grassed landscape belt along the entire length of both
sides of the new access road. Such grassed landscape
belt shall be iaamed and seeded cr sodded and shall
include , without ?imitation , a continuous bi cumino-u8
concrete berm along the entire edge of the other side of
the 61 grassed landscape belt where required .
Additionally , the Partnership shall funish and plant.
trees at 50 foQt intervals along the entire length of
the new access road. Such trees shall be American
Loinden, Norway Maple or Pin Oak with a minirneln caliper
of 21 inches to 3 inches .
The Partnership shall furnish and install additional
landscaping and printings at the ( 40 ' hide ) High Street
location.
5 . The furnishing and installation of plant beds and
islands which shall include, without limitation, the
removal of existing bituminous concrete paving and
gravel sub-base and the installation of new bituminous
concrete curbs , loam, mulch , seed and plantings as
required.
6 . The furnishing and installation of site lighting along
the new access road including , without limitation ,
fixtures , light bases , conduit , power , and all
incidentalEs and work required to make the site lighting
operani onal .
The site lighting fixtures shall be comparable or equal
to the quality, type and size of the existing site
lighting fixtures located on the Partnership' s property ,
and shall be installed at 100 foot intervals along the
entire length of the new access road.
7 . The existing storage/maintenance building , fencing and
appurtenances thereto located adjacent to the 'Trustees '
property line shall be demolished, completely removed
and legally disposed of , and all such areas shall b4�
paved, landscaped and/or restored.
8 . The fuvnishing and installation of two ( } signs which
shall be designed and located by the Partnership as
follows :
a . A sign adjacent to High Street in style and size
similar to typical signs in North Andover
iden�ifying public streets , identifying the
driveway to Lot 2 with a name mutually acceptably
to the Trustees and the Partnership; and
b. one other sign at the point nearest to Binh Street
where the New Roadway Easemul nt diverges from the
entrance to the Partnership ' s parking, lot ,
dirr=!c"ting traffic to Trot 2 Jn chat direction . The
letters Qn such sign shall be a minimum of six ( 6" )
inches in height .
. Stmipping of topsoil , excavariion , backfil.ling and
grading for the In;prove:nents at all unpaved lccations .
10 . The EarnishiTig and installation of gravel under the new
access road ( at all existing unpaved �ccations ) the
gravel product shall be new bank gravel, and the gravel
depth under the new access road small be a minimum of
eight ( $" ) inches .
11 . The furnishing and installation of two and one-half
( t" ) inches of bituminous concrete paving at areas to
be newly paved and one (VI ) inch overlay at all existing
and pared areas along the entire length of the new
access road.
12 . The repair of disturbed areas caused during construction
of the Improvements including , without limitation,
regrading, bituminous concrete repairs , loaming , seeding
and general cleanup .
13 . The proper tie-in and connection of the new access road
to the existing drive and/or improvements located on or
abort the property line of the Trustees ` property . Such
work includes, without limitation, the furnishing of all
materials and the performance of all wort required with
respect to such connection , and the cleanup, regrading
and reseeding of all areas disturbed during sLtch tie-ire
and connection operations .
14 . Cleansing , removal and legal disposal offsite Of all
rubbish, debris and/or surplus materials caused by or
resulting from construction of the lmprov4ements .
15 . The Partnership shall give all notices and shall comply
with all applicable laws , ordinances , males , regulations
and orders of all governmental authorities exercising
jurisdiction over the Improvements or the conduct
thereof and/or the Partnership' s executi.vnr of the work
called €or herein.
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