HomeMy WebLinkAbout12/01/2020 - Declaration of Easements & Restrictions - - 1450 Osgood Street 5
M&CLARATION OF EASEMENIS AND RESTRLCIIONS
THIS DECLARATION OF EASEMENTS AND RESTRICTIONS C'Agreement"')
made this l t day of December, 2020, by and hetwm 1600 OSGOOD STREET LLB, a
Massachusetts limited liability company, whose address is 1600 Osgood Ste,Now Andover,
Massachusetts 01845 (hereinafter referred to as `Lot AOwner"), and OSGOOD RT-125
PROJECT, LLC, a Delaware limited liability company, whose address is 3000 Turtle Creek
Boulevard, Dallas, 'Texas 75219 (hereinafter referred to as "Lot B Owner"). Lot A Owner and
Lot B Owner are collectively referred to herein as the "Owners" and each is 'individually
referred to herein as an"Owner."
RECITALS
WHEREAS, Ut A.Owner is the owner in fee simple of certain real prropeAy located in
the 'Town of North Andover, County of Essex, CommonwWth of Massachusetts, commonly
known and numbered as 1600 Osgood Street and show.as"Lot A"("Lot A'),on a plan entitled
"Easement Plan," dated November 12, 2020, last revised 11/171 0, prepared by Lary
Engineering & Environmental Buis, Inc., recorded herewith as Play. No.
(hereinafter the"'Easement 1 n')p
wMREA , Lot B Owner is the owner in fee simple of certain rcal property located in
the 'Town of forth Andover, County of Esser,, Commonwealth of Massachusetts, commonly
known and numbered as 1450 Osgood Street and shown as "Lot B" Out B" and with each of
Lot A and Lot E sometimes referred to individually as a."Lot"and collectively as the"'Lots")on
the Easement Plan,
WHEREAS, Lot A. Owner has received various approvals for Lot A. relating to the
development of Lot A as an office building and solar facility (the`'Lot A Pro, "%including a
Notice of Decision for Site Plan Review, Parking and CDmmon Driveway Special Pemts, and
Largo-Scale mound-Mounted Solar Energy System Site Plan Review and Solar Setback
Modification pe al P ik issued by the'Town of North Andover Planing Board ("PlannWg
Board"), dated May 20, 2020, and as amended and modified by Notice of Decision dated
Ootober 6, 2020, as the same may be amended. (the "Last A PerudW`), and each of which are
recorded with the Essex North.District Registry of Deeds herewith.
WHEREAS, Hillwood Enterpn'ses, LP (" wood") rem'ved and assigned to Lot B
Owner various approvals for Lot E relating to the development of Lot E as an e-commerce
storage,warehouse and distribution facility(the"Lod B Projec4"and With the Lot A.Pra`eot,the
"Project'), including a Notice of Decision for Site Plan Review, Parking, Con non Driveway,
(00170369;v19)
Bk 16636 Pg154 #34296
Building Hci ht,and Floor Are.Ratio Special Permits,issued by the Plug Board,dated May
20, 2020, and as amended and modified by Notice of Decision dated October 6, 2020, as the
same may be amended (the "'Lot B Permits"), and each of wbich are recorded with the Essex
North District Registry of Deeds herewith.
WHEREAS,the Lot A Owner and Hillwood also received an.Order of Conditions for
the development of Lot A and Lot B, as the sane has been and/or m4y be furiher amended (the
"order of Conditions") ftorn the 'gown of North Andover Conservation Commission
(Tonservadon Oo 'ss o 'I), as amended and modified by Amended Order of Conditions
dated October 22, 2020, which is recorded with the Essex Now District Registry of Deeds
herewith.
WHEREAS, the Lot A Permits, the dot B Permits, and the Order of Conditions
(collectively, the " roj e Approvals"), rewire the Loot A owner and Lot B Owner to submit
documentation coning a declaration of cross-easennents, restrictions and covenants, or
equivalent between the Lot A owner and the Lot B Owner, to identify post-construction
obligations for maintenance, management and other requirements for access/egress, a serer
pump station, storm water management system, sidewalks including the sidowalk along Osgood
Street, common area maintenance areas, utilities, and landscaping, and to record the document
with the Northern Essex Registry of Deeds,
WHEREAS this Agreement intends, inter alia, to evidenoee such declaration of cross-
easements, restrictions and covenants between Lot A Owner and Lot B Owner as required
pursuant to the Project Approvals, for their mutual. benefit and for the benefit of the `town of
North.Andover.
NOW THEREFORE for good and valuable consideration, the receipt and sufficiency
of which is hereby acknowledged, and the facts recited above, and the terms, conditions and
restrictions contained herein, the parties hereby agree to the following conveyances, easements,
rights, covenants and restf.ctions as set forth herein that govern each party's respective
obligations for the construction maintenance, rep it and managernent of these shared amenities
and msements related to their particular parcel as follows:
1. Lot E Owner shall be responsible, at its sole cost and expense, for the initial construotion
of the storm water drainage system and appurtenant drainage treatment facilities (the
fItStorm Water Syste y') for both Lot A and Lot B as contemplated by the Project
Approvals, and the Lot A. Owner hereby grants to the Lot B Owner a temporary
construction a ement over Loot A for purposes of constructing the Storm water System.
Upon and Following oompletion of construction by the Lot B owner, the Loot B Owner
shall warrant the operation of the Storm water System on Lot A for two gears after
oompl.etion of the Project (the "Storm Water Warranty Period") and shall perfonn or
cause to be pedorrned maintenance in accordance with. the O&M Plan and/or repairs as
necessary for the Storm water System to function as designed,which maintenance and/or
repairs shall be at the Lot B Owner's sole cost and expense. Notwithstanding the
foregoing,during the Storn water warranty Period and thereafter,the Lot B Owner shall
not be responsible for maintenance or repairs to the Storm. water System if such.
4017069-,09)
Bk 16636 PgI55 #34296
maintenance or repair is necessary due to damage caused by the Lot A Owner or the Lot
A Owner's violation of applicable law or the conditions of the Project Approvals. During
the Storm Water Warmnty Period,the Lot A,Owner hereby its to the Lot B Owner the
right and license to access Lot A in order to perfprm necessary maintenance to the Storm
'water System on Lot A, subject to the Acros Provisions set forth below. Subsequent to
the Storm. Water Warranty Period the Lot A Owner and Lot B Owner shall each be
responsible, at their sole cost and expense, for the Tangoing maintenance of the portion of
the Storm Water System located on their respective Lot and for repamng any damage to
the Storm Water System caused by such der. Except for Lot B Owner's warranty
obligation during the Storm Water Warranty Period which shad include compliance with
the perpetual conditions and obligations set forth in the Project Approvals, Lot A Owner
and Lot B Owner shall thereafter each be responsible, at their sole cost and expense, for
complying with all perpetual conditions and obligations set forth in the Project Approvals
as related to their respective Lot, including Without limitation Condition Nos. 33, 43.8,
53, 55, 56i 75, 77, 78, 79, 80, 81 and 83-of the Order of Conditions and the Long Term
Pollution Prevention Operation and Maintenance Flan ("O&M Flan") for each Lot as set
forth.in Appendix O of the Order of Conditions, and as the same may be amended. The
Lot A Owner hereby grants the Lot B Owner the perpetual and non-exclusive right and
casement to discharge storm water from the existing and proposed storm pipes on Lot B
through and under Lot A in the area shown as"Proposed Stormwwater Easement in'Favor
of Lot B 123380 SY+/"'(the"Lot B Storm.''water Easemenf)and back into the Storm
Water System located on Lot B, all as shown and depicted on the Easement flan.
Likewise, the Lot B Owner hereby grants the Lot A Owner the perpetual and non-
exclusive right and easement to discharge storm water fiom the existing and proposed
storm pipes on Lot A into the Storm Water System located on Lot B in the area shown as
"Proposed Stormwater Easement in Favor of Lot A 34,003 SY +/-" (the "Lot A Storm
Water Easement% all as shown and depaieW on the Easement Flan, Except to the
extent existing of record as of the date hereof, neither Owner shall grant to the owner of
any other property the right to tie into or connect to the Storm Water System'without the
prior written consent of the other Owner. Nothing herein shall affect any rights either
Owner may have at common law to drain onto the other Owner's Lot or prohibit any
increase in stormwater flow that is not the result of an Owner's acts or omissions.
Subsequent to the expiration of the Storm water Wamwty Period, each Owner shall
maintain and repair that portion of the Storm Water Systern located on its respective Lot
and be responsible for complying with the O&M flan applicable to their respective Lot
as set forth in this Section 1; provided that, any Owner may take such action as is
reasonahly necessary to maintain and repair the Storm Water System if the Owner upon
whose Lot the portion of the Storm -Water System needing maintenance or repair is
located fails to take corrective action within fifteen (15) days after written notice from
such Owner specifying the maintenance or repair that is necessary (the "Self Help
Notice'); provided that only reasonable prior rotten notice shall be necessary if
immediate action is required due to threat of injury to persons or property or if required to
avoid unreasonable interference with the use or occupancy of the respective Lot. Any
written notice under this Section 1,to be effective,must clearly state the deadline for the
repair and must clearly state in capitalized font that self help measures will be exercised
under the terms hereof if the repairs are not made before such deadline.Any maintenance
(04170369;09)
3
Bk 16636 Pg156 #342 96
or repairs hereunder shall be as mmmally intrusive and as minimally damaging as
reasonably possible and shall be performed in,a professional and wovmanlike fashion
and with all required govexmnental permits and approvals and in accordance with all
applicable laves and shall restore the surface; of the impacted area to its prior condition
mmptly Upon completion of such repairs, Each Owner shall pay to the Owner of the
Lot that performs any of the foregoing maintenance or repair its proportionate share of
the costs of maintaining; the Storm water System. The proportionate shave ("Pro Bata
Ste')of each Owner shall be equal to a f etion,the numerator of which is the surface
area,in square feet,of the irnperrntable surface area(surface paving,dn"veways and roof
surface) of the Owner's property utilmng such portion of the Storm water System and
the denorninator of whiff is the aggregate surface area, in square feet, of the
impermeable surface area of all such properties utilizing such portion of the Storm water
System (with such calculations based upon the stnactums and improvements
contemplated by the Projeet Approvals, as may be amended). Notwithstanding anything
to the contrary set forth herein, if repairs to the Stonna water System and/or any other
aspect of a Lot are necessitated by the negligence or breach of this Agreement by either
Owner, whether through the introduction of improper materials or substances into the
Storm water System or otherwise, the negligent and/or breaching Owner shall be fully
responsible for the reasonable cost of any necessary repairs and shall reimburse such
costs within 30 days aver receiving a written invoice thereof. Any such reimbursement
amounts due that are not paid within said 30-day period shall bear interest from the date
of reo6pt by the applicable Owner of such invoice until paid at a rate equal to the lesser
of(i) ten percent(10%) or(fi)highest rate allowed by applicable law. An Owner shall
have a lien against the interests of each other Owner who has not paid its Pro Rata Share
within such 30-day period and such lieu may be enforced through any means authorized
by law
2. Lot.B Owner hereby grants to Lot A Owner the right and easement in the area shown as
"Proposed Sanitary Sewer in Favor of Lot A 52,768 S.F. +/" on the Easement Plan(the
"Sewer Easement") to allow wastewater from Lot A to flow through an underground
sanitary sewer force train that is partially existing and to be constructed by Lot B'Owner
on and under Lot B, including any manholes, pipes, conduits and associated
appurtenances (the "Sewer Line") using the equipment now in place or as may be
modified and amended by the Lot B Owner including but not limited such equipment as
currently exists or as may be replaced by the Lot B Owner (the "Sewer System"), to
alloy wastewater from Lot A to be discharged through the Sewer Line and Sewer Systern
to the greater Lawrence Sanitary District ("GLM"), and Lot A Owner shall have the
appurtenant right to repair and replace the Sewer Line and Seger System so long as the
Sewer Easement shall remain in force and effect, subject to the Access provisions set
forth below (such Sewer Easement, Sewer Line and Sewer System, as modified,
collectively referred to as the"Existing Sewer"). Lot B Owner shall at its sole cost and
expense construct, repair, maintain, and replace the Existing Sewer so as to relocate the
Existing Sewer connection to Lot A to within the Sewer Easement, and shall warrant the
operation of the Sewer System for one year after completion of the Project(the"Existing
Sewer warranty Period") and shall perform or cause to be performed repairs as
necessary for the Existing Sewer to function as designed,which repairs shall be at the Lot
(00174369;vl9)
4
B� 16636 Pgr157 #342 g6
B Owner's sole cost and expense. Notwithstanding the foregoing, during the Existing
Sewer Warranty Period and tbereafter, the Lot B owner shall not be responsible for
maintenance or repairs to the Sewer System if such maintenance or repair is necessary
due to damage caused by the Lot A owner or the Lot A owner's violation of applicable
law or the conditions of the Project Approvals. At all times thereafter, Lot B owner shall
remain remponsihle for the costs and expenses of repair,maintenance and replacement of
any portion of the Existing Sewer wbi ch is oonnected to Lot B.
At such time as the municipal serer alternative as contemplated by the Project Approvals
(the "Municipal Sewer") is available for connection by Lot A and Lot B, the Lot B
Owner sball at its sole cost and expense construct and/or replace the Sewer Lime and
Sewer System to connect Lot A to the Municipal Sewer and decommission the Existing
Sewer upon connection of the Owners to the Municipal Sewer. The Lot B Owner shall
warrant the operation of the Lot A Municipal Sewer connection on Lot A for one year
after completion and shall perform or cause to be performed repairs as necessary for the
Lot A connection to the Municipal Sewer to function as designed,which repairs shall be
at the Lot B Owner's sole cost and expense. Upon Lot B owner connecting Lot A to such
Municipal Sewer and decommissioning the Existing Sewer, the Sewer Easement shall
terminate and the Lot A owner and Lot E Owner shall execute and record a Notice of
Termination to confirm the same of record.
3. Lot B owner hereby grants to and for the benefit of the Lot A.owner, and for the benefit
of its tenants,including Osgood Solar, LLC,and its succors and assigns, the perpetual
and nonexclusive rights,privileges and easement(the"Electric Easement")to maintain,
operate, repair and replace electric lines, solar inverter equipment and connections to
NGRID, its successors and assigns (the "Grid Connection"') in the area shown and
depicted as "Proposed Electric Easement in Favor of Lot A 6,760 S.E. +/-" on the
Easement Flan. The Electric Easement and Grid Connection referenced above and as
depicted on the Easement Plan, shall be located entirely underground in designated pipes
or conduits, excepting for the Grid Connection equipment and any related fencing,
junction boxes,meters,tmnsfornners and backfxow preventers.Additionally, Lot B Owner
hereby grants to the Lot A der the right and easement to access the Electric Easement
in order to perform necessary maintenances replacement and repairs to the Electric
Easement and Grid Connection subject to the Acss Provisions set forth below,
provided, however, under no circumstances shalt such access interfere with Lot B
owner's use,occupancy, access and business operations upon Lot B.
4, In furtherance of Lot A Owner and Lot B Owner's obligations under the Project
Approvals to acknowledge their assumption, in perpctuity, of their responsibility for the
maintenance of new sidewalks or other pedestrian shamd use paths constructed along the
western side of Osgood Street as a requirement of the MassDOT vehicular Access
Permit, Lot B owner acknowledges and agrees, in perpetuity, that Lot B Owner shall
maintain the sidewalk area labeled. "Proposed Sidewalk Easement in Favor of Lot B
31,593 S.F. +/_"' on the Easement Plan (the "Sidewalk Easement Area"), including
repairs and snow removal,but if and only to the extent that such maintenance is a specific
obligation or requirement set forth in the Project Approvals or MassDOT vehicular
(001 0369,M9)
5
Bk 16636 Pg158 # 34296
Access Permit. Additionally, Lot A Owner hereby grants to the Lot B Owner the right
and easement to access the Sidewalk Easement Area in order to perform required repairs
and maintenance.
5. Reference is also hereby made to the access easements(i)granted by the Lot A Owner in
favor of the Lot B Owner over the signalized north access and driveway area, and (fi)
granted by the Lot B Owner in favor of the Lot A der over the signalized south access
and driveway area, bath of which easements (the "Driveway Easements") are dated on
or about the date hereof and recorded herewith. The Driveway Easements include
additional covenants and obligations of the parties as required by the Approvals.Nothing
herein shall be deemed to amend,alter or modify the terms or provisions of the Driveway
Easements.
6. Access to either Lot for purposes of monitoring, inspecting, maintaining, installing,
repairing or replacing any easement areas or improvements within the easement areas as
contemplated in this Agreement shall be subject to the provisions (the, "Access
Provisions")as follows:
a. Notwithstanding anything to the contrary herein, any entry onto either Lot A or
Lot B (as applicable) pursuant to the terns hereof will be subject to the Friar
written pennmission (excepting in the event of emergency) of each occupant of
such Lot pursuant to a recorded Notice of Lease (an "Occupy d"- and any such
permission, an `Entry Permission'), which will not be unreasonably withheld,
conditioned, or delayed. It will be reasonable for such Occupant to refuse to
provide an Entry Permission if(a) a written request for passion to enter (an
"Entry Notice") is not delivered to such Occupant at least twenty-four(24)hours
prior to the requested time of entry(except in the event of emergency), or(b)the
reason fbr and scope of the activities to be undertAen pursuant to such entry is
not desen"bed in reasonable detail in such Entry Notice so that the Occupant can
reasonably determine the magnitude of any attendant interruption of or
interference with the use and operations conducted by the Occupant, any
reasonably anticipated damage to the surface area of the applicable Lot, and the
scope of any repair and restoration required as a result thereof. The Occupant of
the applicable Lot may require each person entering the applicable Lot to comply
with such Occupant's reasonable security and confidentiality measures. Upon the
granting of permission to enter pursuant to an Entry Notice, the Occupant of the
applicable Lot will have the right to have a representative present to observe all
activities undertaken on the applicable Lot. The terms of this Section 6 shall have
no applicafion to any portion of the area of the applicable Lot to be entered that is
common area or otherwise occupied by more than one Occupant.
Notwithstanding the Entry Permission required hereunder, provided that such
Owner has sent an Entry Notice and has copied the Occupant in writing on the
Self Help Notice sent to the other Owner under Section 1 above,the conditions of
this Section b shall be deemed to have been satisfied.
(0017€369-,09)
Bk 16636 Pg159 #34296
b, All rights granted by this Agreement shall be exercised in accordance with all
applicable laws, rules and regulations of any municipal, loW, county, state or
federal authority,hoard, romnussion, agency or quasi-governmental agency with
any Jurisdicdon over the Lots. In exercising the easements granted pursuant to this
Agreement, the Owners shall use reasonable efforts to m n mite any interference
with or interruption of business activities conducted on the Lots.
7. If any Owner does not keep or perform any of the respective terms, covenants, or
conditions imposed upon them pursuant to this,A.greement,and shall fail to cure the same
within thirty (30) days following receipt of written notice of default (or such longer
period as shall be reasonably necessary to cure, provided that the defaulting party shall
undertake and continue commercially reasonable efforts throughout) it shall constitute a
default.
8, Notices under this Agreement shall be subject to the following provisions
a. Any and all notices, demands, consents, approvals, offers, elections and ether
communications required or permitted under this Agreement shall be deemed adequately
given if in writing and the same shall be delivered either in hand, by telecopier or by e-
mail with confirmation of receipt generated by the sender's machine, or by mail or
Federal Express or similar expedited mnunercial carrier,addressed to the recipient of the
notice, postpaid and registered or certi f ed with return receipt requested (if by mail), or
with all freight charges prepaid(if by Federal Express or similar carrier). Notices by any
party may be given by the attorneys for such patty.
b. All notices required or permitted to be sent hereunder shall be deemed to have been given
for all purposes of this Agreement upon the date of confirmed receipt, in the case of a
notice by telecopier or by e-mail and, in all other cases, upon the date of receipt or
refusal, except that whenever under this Agreement a notice is either received on a day
which is not a Business Day (which for purposes of this Agreement shall mean any day
other than a Saturday, Sunday or any other day on which brag institutions in the
Commonwealth of Massachusetts are closed for federal or state holidays) or is required to be
delivered on or before a Welfic day which is not a Business Day, the day of receipt or
required delivery shall automatically be extended to the next Business Day.
c. All such notices shall be addressed as follows:
Grantor: Osgood RT-125 Project,LLO
c/o Hillwood Development Company
5050 w.Tilgham Street,Suite 435
Allentown,PA 18104
Attn: Gary Frederick
Email:gar ,frederick hillwood.com
(00170364;v l P)
7
Bic 16636 Pg160 #342 96
With a copy to Millwood Enterprises,LP-0
c/o Millwood Development Company
3 000 Turtle Creek Blvd.
Dallas,Texas 75219
Attn:Marla Long and John Emslie
Email:marl .lo "llwood.coms
ohn.a ms l ie 'llwoc d.coM
Grantee: 1600 Osgood Street LLO
I600 Osgood Street
North,Andover,Massachusetts 41845
Attn: Orit Goldstein
Email: o of tein zz ra rties.
With a copy to: Ruberto, Israel&Weiner
255 State Sty 7h Floor
Boston,Massachusetts 02109
Attn:Michael D.Rosen,Esq.
Email:m�,n`w. ,.�►
d. Ey notice given as herein provided, each Owner shall have the right from time to time
and at any time daring the terra of this Agreement to change their respective addresses
effeoave upon receipt by the other Owner of such notice and each shall have the right to
sped fy as its address any other address wig.the United States of America;
9. In the eveut a default under this Agreement has occurred and is continuing to occur with
respect to an Owner,the other Owner may:
a. Cure such default after written notice as provided for in Section 8 above
and charge back the costs of am to the defaulting Owner;
b, Enforce this Agreement against such Owner by an action at law or in
equity,including but not tinted to,an action for ire,junctive relief, specific
performanm, lien and/or attachment and Wbrcernent of the lien and/or
attachment;
c. Pursue any other remedy available to such Owner, as applicable, at law or
in equity;and
d. Seek all reasonable legal fees and costs against the Owner found to be in
default.
10. An Owner from whom indemnification is sought (the "Indemni&Lnj F will
indemnify, defend and bold harmless an Owner seeldng indemnification (the
"Indemified. Dart ") from and against any and all claims, demands or suits, losses,
liabilities, damages, obligations, payments, costs and expenses (including, without
lindtation, the costs and expenses of any and all actions,suits,proceedings, assessments,
,judgments, settlements and compromises relating thereto and reasonable attorneys' fees
and reasonable disbursemcuts in connection therewith)asserted again' st or suffered by an
t00170369.,091
8
Bun 16636 Pg161 #342 96
Indemnified Party to the extent relaft to,resulting from or arising out of Indemnifying
Party's act or omission with respect to an easement area, or any breach by any
Indemnifying Party or their lessees, occupants, contractors, Customers, employees,
lieenmes, tenants and invitees, agents or employees, of any covenant or agreement
contained in this Agreement by the Owner from whom such indemnification is being
sought,,The expiration,termiteion or extinguishment of any covenant or agreement shall
not meet any other obligations of the Owners hereunder,
11, The procedures set forth below shall be followed with respect to every claim for
indemnification:
a. An Indemnified Warty shall give to the Indemm"fying Party written notice of any clams
for which indemnity is sought as soon as praeticable,but in any event within thirty(30)
calendar days after the Indernuafed Party receives notice thereof,provided however,that
failure by the Indemnified Party to give such notice shall not relieve the Inderuifying
Party from any liability it shall otherwise have i noun-ed pursuant to this Agee went,
except to the extent that the Indemnifying Party is actually prejudiced by such failure.
Such notice shall set forth in reasonable detail the basis for such potential claims and
shall be given in accordance with Section 8 above. The indemnification period provided
for herein shall be tolled for a particular claim for the period begin" =' g on the date that
the Iandemmffied Party receives written notice of such claims until the final resolution
thereof.
b. The Indemnified Party agrees that the Indemnifying Marty shall have sole control of the
defense and all related settlement negotiations of any thi.rdwparty clam" for which
indemnity is sought,provided however,that the Indemnifying Party shall not agree to any
settlement or compromise that imposes any obligation or liability on the Inde�nn�ified
Party or which limits or reduces such Indemnified Party's right to recover without the
Indeamur ified Party"s prior written consent, The Indemnified Party shall have the right to
padicipate in the defense and settlement negotiations of such claim through its own
counsel at its own expense,
c. The Owners shall cooperate ire the defense of any third party claims and each shall make
available all books and records which are relevant in connection with such third party
claims. The Indenmifying Party will not consent to the entry of any judgment or enter
into any settlement with respect to any matter which does not include a provision
whereby the plaintiff or claimant in the matter releases the Indemnified Party from all
liability with respect thereto,without the written consent of the Indernnif ed Party,
12. Each Owner shall be required to cary general liability insurance against claims of bodily
and personal injury or death and property damage occasioned by or arising out of the
Owner's use of the easement areas and other Owner"s Lot,and the use of their respective
successors, assigns, tenants,employees, contractors.., agents,licensees and invitees. Each
party shall furnish certificates of such insurance upon written request by the requesting
party. Such insurance shall be maintained under a policy or policies which shall name the
other party as an additional named insured, in each case having a limit of not less than
f00170369-v]9}
9
Bk 16636 Pg162 #342 96
One Million Dollars($1,000,000)per person and Three Million Dollars($3,000,000)per
oecurrenee. Lot A Owner and Lot B Owner shah be required to review and, if
co=ercially reasonable,adjust the required amount of insuranco coverage every five(5)
years, beginning upon the expiration of five (5) years following the exmtion of this
Easement Agreement,
13. This Agreement may be terminated, extended, modified, or amended only with the
express written consent of all Owners. The easements granted hereunder may only be
relocated, released, extinguished, amended,waived or modified by written instrmnent in
recordable form, executed and delivered by each of the then current Owners of the Lots,
at the sole cost and expense of the Owner seeking such relocation or modification Any
request for relocation by an Owner hereunder shall be deemed reasonable if necessary for
the use and/or enjoyment of such Owners Lot, or the buildings, improvements, fixtures
and other structures situated thereon and any tenants of such Owner occupying all or any
portion thereof, provided that such relocation shall not have an adverse effect on the
burdened Lot or the Owners or occupants thereof. Notwithstanding anything to the
contrary herein:
a. with respect to the Storm water System, (i) an Owner, at its sole expense, f om
time to time may, upon amendment of any Project Approvals to the extent
necessary, relocate a portion of the Storm water System or the Storm water
Easements on its respective Lot, so long as the relocated portion of the Stom
Water System and Storm water Easement perform in the manner contemplated
by the project.Approvals and final approved plans pursuant thereto, as amended,
without lessening the utility of the Storm water Easement, increasing the burden
on the other Owner's use or enjoyment thereof, or frustrating the purposes of
such Storm water Easement; with temporary interruptions and obstructions
associated with the construction of such modifications being permitted to the
extent that such do not unreasonably interfere with other Owner's rights
hereunder and (ii) if any relocation occurs, the party relocating the S tonn Water
System and Storm water Easement on their Lot, without the necessity of the
joinder of the other Owner provided that the other Owner has been provided ten
(10)days advance written notice,may record an amendment to this Agreement to
substitute a new description of the relocated Storm water Easement.
b, with respect to the Sewer Easement and Sewer Line and Sewer System, (i) the
Owner of Lot E, at its sale expense, from time to time may, upon araeudment of
any Prqject Approvals and OLSD approvals to the extent necessary, relocate a
portion of the Sewer Line and Sewer System or Sewer Easement on Lot E so
long as the relocated portion of the Sewer Line and Seger System and Sewer
Easement performs in the manner contemplated by the Project Approvals without
lessening the utility of the Sewer Easement, increasing the burden on the Lot A
Owner's use or enjoyment thereof, or frustrating the purposes of such Scwear
Easement; with temporary interruptions and obstructions associated with the
construction of such modifications being permitted to the extent that such do not
unreasonably interfere with the Lot A Owner's rights hereunder and (H) if any
(00 70369;Y1 9)
10
Bk 16636 Pg163 #34296
relocation occurs, the lot B [owner, without the necessity of the joinder of the
Lot A Owner provided that the Lot A owner has been provided ten (10) days
advance written notice,may record an amendment to this Agreement to substitute
a new description of the relocated Sewer Easement.
14. The legal effect of this Agreement shall be governed under the laws of the
Commonwealth of Massachusetts, each party here consents to sole and exclusive
jurisdiction of courts located within the Cornmmonwealth of Massachusetts to resolve any
disputes hereunder,and each party agrees to the following;
a. All easements, common schemes and fictions and covenants granted
herein shall be binding upon the Owner of the respective Lot and run with
each Lot named herein;and
b. Each Owner now or hereafter having or hewafler acqumng an interest in
all or a portion of the Lot are hereby hound by all easements, covenants,
and obligations regarding the same granted herein.
15, If either party shall be unable to carry out any obligation under this Agreement due to
Force Majeure, then without affecting any other provisions hereof, such obligation shall
be suspended for the period necessary as a result of the Force Majeure,provided,that;
a. the non-performing party gives the other party written notice not later than forty-
eight (48) hours after the occurrence of the Force Majeure describing the
particulars of the Force Majeure, incJuding, V 'thout limitation, the nature of the
occurrence and the expected duration of the disability, and continues to furnish
timely regular reports with respect thereto during the period of Force Majeure and
the disabiliW,
b. the suspension of perfonnance is of no greater scope and of no longer duration
than is reasonably required by the Force Majoure;and
c. the non-performing party uses good faith,diligent efforts to remedy its inability to
perform.
16. Notwithstanding anything contained herein to the contrary,if any lawsuit or arbitration or
other legal proceeding arises in connection with the interpretation or enforcement of this
Agreement, the prevailing party therein shall be entitled to receive from the other party
the prevailing party's costs and expenses,including reasonable attorneys" fees incurred in
connection therewith, in preparation therefor and on appeal therefrom., which amounts
shall be included in any judgment therein.
17. if any provision of this Agreement is held to be illegal, invalid, or unenforceable wider
present or future laws effective during the term of this Agreement, such provision shall
be fury severable and this Agreement shall be construed and enforced as if such illegal,
invalid or unenforceable provision had never comprised a part of this Agar went,and the
remaining provisions of this Agreement shall remain in full force and effect and shall not
(00170369-vl9)
�t
B-um 16636 Pg164 #342 96
be affected by the illegal,invalid or unenforceable provision or by its severance from this
Agreement, unless such continued effectiveness of this Agreement, as modified, would
be contrary to the basic understandings and intentions of the paTies as expressed herein.
18. Each individual executing this Agreement represents that she or he is duly authorized by
the respective owner for which he or she is sigmng to bind such Owner to the terms
hereunder. Further, each such party executing this Agreement acknowledges that he or
she understands the terms of this Agent,has had the chance to review the same with
the respective Owner's legal counsel and age that her or his signature is her or his free
act and deed taken on behalf of the respective Owner.
19. The rights, duties and obligations created by this ,A.gmvment shall constitute covenants
running with the land, sball be binding on all subsequent Owners, and shall be binding
upon and inure to the benefit of each Owner and their respective successors and assigns.
This document shall be recorded with the Essex County earth District Registry of Deeds.
In addition,any person or entity who hereafter acquires any right,title or interest in all or
any portion of Lot A or Lot B shall be deemed to have adapted, accepted and agreed to
be bound by all of the provisions of this Agreement, and such right,title and interest sWl
be subject to the provisions of this Agreement.
20. An Owner,upon written request from another Owner,shall provide such requesting party
or its mortgagee, successor or tenant or potential mortgagee, successor or tenant, within
fifteen (15) days following such request, an estoppel certificate stating to the best of the
issuer's knowledge as of such date: (a)that there is no default by either parry under this
Agreement or, if there is, specifying the nature of such default; and (b) whether this
Agreement i s in full force and effect.
21, If any term or provision or portion of this Agreetxent or the application thereof to any
person or circumstance shall,to any extent,be invalid or unenforceable,the remainder of
this Agreement, or the application of such tern or provision or portion thereof to persons
or circumstances other than those as to whieh it is held invalid or unenforceable,shall not
be affected thereby, and each such terin and provision of this Agreement shall be valid
and enforced to the fullest extent peitted by law.
22, Except to the extent provided for in any other agreement existing by and between the
parties, and notwithstanding anyth"g to the contrary,neither Owner will be liable to the
other for consequential damages, such as lost profits or interruption of either party's
business.
(Signature and acknowledgement pages follow)
(00170369;v19)
12
Bk, 16636 PgI65 #342 96
1
Executed as a sealed insh*ament as of this day of er,202Q.
1604 OSGOOD STREET LLC
by: &AA
Name:Ron Zwanziger
Title;Authorized Signatory
COMMONWEALTH OF MA,S SACHUSETTS
oom�
ss.
On this day of November, 2020, before one, the undersigned notary public,
personally appeared Ron Zwanziger, proved to me through satisfactory evidence of
identification, which was personal knowledge, to be the son whose name is signed on the
preceding or attached document,and acknowledged to in t helshe signed it voluntarily for its
stated purpose as the voluntary act of 1600 Osgood Stree L
Novry Public:
M Commission Exp ires:
MICHAEL DANA ROSEN
MICHAFL
DANA ROSEN
; rotary Pub11
G
»rr i
s r •"'
•`-'... Gomrnonwool h of M�ssachusers
'vrrirn1stion xpires August 27,ZaZ1
100174369;vl93
13
Bk 16636 Pg1.66 #342 96
Executed as a wed Mnstrment as of this Pr day of ember 2020.
OSGOOD RT-125 PROJECT LLC
4
Name,Larry l i
Title: Senior Vice President
STATE OF TEXAS
County of Dalla,ss.
On this day of No'vembe4 2020, before mc, the undetsigned inotary public,
rsonali �3ialr, � � .
y V1�� �' , pt+aved to me through satisfactory evidenee of identification,
which was person knowledge, to be the person whose name is signed on the�ched document, and preceding or
a
acknow1odgod to me that Wshe signed it voluntarily for its stated
purpose as the voluntary act of Osgood RT- 25 Pmject,LLC,
JULIA wICKB
140tary 10#13 2719236 Notary Public print name): J u i i ram... W i c�s
MY Co minia n Evir" My Commission E fiw:OCR-&b c v � zo�ai
October 8,2024 ►
[00I70369;YI9}
14