HomeMy WebLinkAbout12/01/2020 - Easement Agreement (Southern Access) - - 1450 Osgood Street RETURN TO: Marla Long
Hillwood Development Company,LLC
3000 Turtle 0"k Blvd.
Dallas,Texas 75219
BASEMENT AGREEMNT
(Southern Aems)
This easement agreement (this `Easement Agreemenf) is made this z't day of
December, 2020, by OSGOOD RT-125 PROJECT, LLC, a Delaware limited liability
company, whose address is 3000 Turtle Creek Boulevard., Dallas, Texas 75219, hereinafter
toge er with its sueeessors and assigns referred to as "Gro tour," in favor of 1600 OSGOOD
STREET LLC, a Massachusetts limited liability company, whose address is 1600 Osgood
Street,Norrth.Andover,Massachusetts 0 1545,hereinafter together with its suessors and assigns
referred to as the"Grantee."
YY ITNESSETH.
WHEREAS, Grantor is the owner in fee simple of certain areal property located in the
Town of North Andover, County of Essex,Corr nonwealth of Massachusetts, commonly known
and numbered as 1450 Osgood Street and shown as "Lot B" on that certain plan entitled,
"Easement Flan," prepared by Langan Engineering and Envirom ental Services, Inc., with
reference to Project: 1600 Osgood Street, North Andover, Massachusetts, dated November 12,
021,last revised 11117/20 sreinater the " an") attached hereto as Exhibit "A" and rewrded
herewith as flan No. thereinafter the"Grantor Vjaer ");and
WHEREAS, Grantee is the owner in fee simple of certain real property located in the
Town of North Andover, County of Essex,Commonwealth.of Massachusetts, commonly known
and numbered as 1600 Osgood Street and shown as "Lot A"' on the Plan (hereinafter the
"Grantee Fropel:ff')s and
WHEREAS, Grantee owns and operates an existing three-story office building on Lot A
and associated improvements,including above-ground parking(the"B in "I
WHEREAS, Gntor intends to construct improvements on the Easement Area,
including,but not limited to,a private roadway C'Construction World');
WHEREAS, Crantor, having the authority to do so, intends to enter iota this Easement
Agreement in order to grant to Grantee, its successors and assigns the Easement(defined below)
(I0173366;V31
Easement Agreement--1450 Osgood Street—Page 1
Bk 16636 Pg141 #34295
in, on and over the portion of the Crrantor Property shown as `Proposed Access Easement
Favor of Lot A 24,511 S.F.+/-" on the Plan `'Easement ,Area") for the purposes described
herein, and a metes and bounds description of which Easement Area is attached hereto as
Exhibit Bs
NOW, THEREFORE, in consideration of good and valuable considemdon, 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 that tho mentor property
shall be subject to the following onveyances,easements,rights,covenants and restriction:
1. Grantor hereby conveys, transfers, assigns and grants to Grantee, its successors
and assigns for the benefit of the Grantee Property a perpetual, non-exclusive vehicular emcees
easement over and across the roadway construaed by Grantee upon the Easement Area for the
sole purpose of ingress and egress of Grantee and Grantee's successors, assigns, tenants,
representatives, agents,contractors,visitors and employees("!P�rantee Parfiee)to and from the
Building (the"Easement'), and for complying with any permits, approvals, conditions or other
laws, rules or regulations governing aecess to Lot A over the Easement Area, including the
installation of signs, signage, lighting or related structures and improvements as required by the
Signage Permits (as defined below), and for no other purpose,which Easement shall be for the
benefit of all or any portion of the Grantee Property. Grantor shall construct the driveway
within the Easement .Area in accordance with and substantially as shown on the plans as
referenced in: the Site flan Review, Parking and Common Driveway Special Permits, and
Large-Scale Ground-Mounted Solar Energy System Site Plan Review and Solar Setback
Modification Special Permit issued by the North Andover Planning Board dared May 20, 2020,
as modified on October 6, 2020, recorded herewith, as the same may be father amended of
record,and the Site Plan Review, Parking,Cone non Driveway, Building Height, and Floor Area
Ratio Special Fern its, issued by the North Andover Planning Board dated May 20, 2020, as
modified on Goober 6,2020,recorded herewith, as the same may be fiuther amended of record
(collectively,the I'Annaroyals"). Grantor shall also install such siMe as is to be located within
the Easement Area in a location and of such design as as mutually agreed upon and in accordance
with Signage Master Plan Special Permits to be issued by the North Andover Planning Board to
Gruator and Gmtm,and to be hereafter recorded with the Essex County North.District Registry
of Deeds (the `I i n a e Permits"I. Further, motor shall be responsible to maintain the
Easement Area, including: (i) to maintain the signs located within the Easement Area in
accordance with the Signage Permits (excepting for signs, if any,which are exclusively for the
benefit or identification of Lot A, for which Grantee shall be solely responsible to maintain),and
(ii) to keep the driveway within the Easement Area clear of snow, on a perpetual basis to satisfy
the intent of the Approvals, Grantee shall not have a right to pw form any improvements upon
the Easement Area and shall not have any right to use the Easement Area until completion of
construction of all improvements within the Easement Area by the motor and approval for use
is granted by all necessary governing authorities.
2. The Easement shall be strictly limited and construed upon the express terms as set
forth in this Easement Agreement and shall not include any additional rights as may otherwise,
now or in the future,be available at common law to the owner of a seMent estate, and,without
limitation, it is hereby intended by the parties, and expressly acknowledged and agreed by
(00173366;v3)
Easement Agmment—1450 Osgood Streit—Page 2
Bk 16636 Pg1.42 #34295
Grantee,that Grantee shall not have: (i)any rights to make any modifications to the terms of the
Easement or Easement Area; and(ii)any right to cause or seek to cause the Easement Area to be
relocated at any time in the future. To the extent that any such rights might arise under common
law or otherwise exist they are hereby forever discharged, waived, disclaimed and released by
Grantee. Grantee shall not redesign or reconfigure the Grantee Property in any way that could
result in any material increase of use of the Easement Area and shall not permanently block,
discontinue, discourage or otherwise hinder any use of other points of existing egress from the
Grantee Property that could result in an increase of use of the Easement Area beyond that which
is permissible under applicable bylaws, permits and approvals for Lot A for the buildings as
currently configured and as shall be reconfigured as contemplated by the Approvals. Nothing
herein shall preclude Grantee from constructing tenant improvements to acwmmodate a
proposed use which is currently permissible on Lot A+
3. The parties agree that the Easement shall be in full force and effect as to all of the
Easement Area. During the pendency of this Easement Agreement,Grantee shall take all actions
reasonably requested by Grantor and shall reasonably cooperate with Grantor, at no cost to
Grantee, to obtain the issuance of any govenrrnental permits, entitlements, or other approvals
requested by Gmtor,including execution and delivery of any and all applications therefore,that
may be necessary and/or requested by the applicable governmental au horlty to construct and/or
modify improvements in the Basement Area,
4. Nothing contained in this Easement Agreement shah be denied or construed to
give or grant to Grantee,Grantee Parties,the public,or anyone else,any rights to use any portion
of the Grantor Property except the Easement Area,
5. Excepting for such signs, markings or other traffic controls that Grantor shall
install as may be rewired by the Town of North Andover Planning Board C'Plav Board")
or the Massachusetts Department of Transportation CWassDOT"),in no event shall the Grantor
or the G we, urea, place or maintain any improvement or obstruction whatsoever moss any
portion of the Easement Area that temporarily or permanently blocks or impedes physical acros
to the Easement Area at any time', provided, however, that Grantor shall have the right to
temporarily block or impede access to the Easement Area in connection with the Construction
Work or any maintenance or modifications to the Easement Area as may be necessary in the
futme. if Grantee temporarily or permanently blocks or impedes Grantor's physical access to the
Easement Area, such action will be considered a significant interference with Grantor and
Grantor's successors, assigns, tenants, representatives, agents, contadors, visitors and
employees C"Grantor Parties") use.of the Easement Area under Sectio and, in addition to
its remedies available to Grantor under Section 9 and Section 10. Grantor may also immediately
take any commercially reasonable action to cure such blockage or impediment to access.
Likewise, if Grantor temporarily or permanently blocks or impedes creamy s physical mess to
the driveway within the Easement Area (except as may be allowed in connection with
construction or maintenance by the Grantor in compliance with the provisions of this Easement
Agreement), then such action will be considered a significant interference with Grantee and
Grantee's successors, assigns, tenants, representatives, agents, contractors, visitors and
employees C'.GLantee Paroles") use of the Easement Area under Sin_10 and, in addition to
(00 173S66;v3)
Eument Agreement-1450 Osgood Strut-Page 3
Bk 1.6636 Pg143 #34295
its remedies available to Grantee under Section 9 and Suction 10, Grantee may also immediately
take any commercially reasonable action to cure such blockage or impediment to access.
61 grantee acknowledges and agrees that the Easement Area is located within a
portion of a primary vehicular and truck access route to the Cmwtoe s Property. Grantee
covenants and agrees not to impair vehicular and/or truck access to the Grantor"s Property
through Grantee property Owner's exercise of its rights hereunder. Grantee shall not park any
vehicles within the Easement Area. Grantor may tow or otherwise remove any vehicle parked in
or blocking the Easement ,Area and charge the reasonable, actual cost of such removal to the
party responsible.
7. Subject to compliance with and so long as not in violation of the Approvals or
any requirements of the Planning Board or MassDOT, Grantor specifcally reserves the right, at
any time, and from time to time, to promulgate such rules and regulations applicable to the
Easement Area as might be reasonably 'imposed to promote the health, safety, welfare and
security of the grantor Property, the improvements located thereon and users of the Easement
Area., so long as such rules and regulations shall not impose limitations which discriminate
between Grantor Parties and Grantee Parties or which will unreasonably interfere with the scope
and utility of grantee's rights for the purposes permitted hereunder.
8. Intentionally omitted.
9. In addition to, and not in limitation of any other rights of either party hereunder
or at law or in equity, if either party determines that a breach,default or violation CTIolatioW)
of this Easement Agreement has occurred, or that a violation is threatened, the notifying party
may give written notice to violating pasty of Such violation, setting forth the specifies theroof,
and demand corrective aetion sufficient to cure the Violation within a reasonable time period
(not to exceed thirty(30) days. If the violating party fails to cure the violation aster receipt of
notice thereof from the notifying party, or under cu'v mstances where the violation cannot
reasonably be cured within a time period dictated by the notifying party, fails to begin curing
such Violation within the tinne period dictated by the notifying party, or fails to continue
diligently to cure such violation until finally cwxut the notifying party may bring an action at
law or in equity in a court of competent jurisdiction:
a, to enjoin and/or cure such violation;
b, to seek or enforce such other legal and/or equitable relief or remedies as
the notifying party deems necessary or desirable to ensure compliance with the teams,
conditions,covemts,obligations and purpose of this Easement Agreement.
0
10. If Grantor, in its reasonable discretion, determines that circumstancm regwrc
immediate action to prevent or mitigate sig;ftificant damage to the Easement Area or significant
interference with Grantor"s or grantor parties'use of the Basement Area or the Gmtor Property,
Grantor may pursue its remedies under Section 9 above, including injunctive relief, without
providing prior notice to Grantee and without waiting for the reasonable cure period described in
Seeti.on 9 to expire. The parties agree that mentor's remedies at law for any Violation of the
(00 173366;v3)
Ea emmt Apmnent-1450 Osgood Stmeet-Page 4
Bk 16636 Pg144 #342 95
terms of this Easement Agreement rising to the level described in this Section 10 are inadequate
and that Grantor shall be entitled to injunctive relief,both prohibitive and mandatory,in addition
to such other relief to which motor may be entitled,including specific perfornxance. The above
language shall in no event be interpreted to derogate or diminish either party's rights and powers
under the laws of the Commonwealth of Massachusetts for the protection of public health.,, safety
and welfare.
11. Any delay or omission by either party to exaMse its rights or remedy under this
Easement Agreement in the event of any Violation shall not be dewed or construed to be a
waiver of any right or remedy available to such party under this Easement AgCeement or a
waiver or consent to any subsequent Violation of this Easement Agreement.
12. The prevailing party in any action brought to enforce the tennms of this Easement
Agreement shall be entitled to waver oasts, including,,without limitation, the reasonable costs
of suit and attiomeys' fees.
13. Any notice, demand, request, consent, approval or communication under this
Easement Agreement shall be sent by certified mail, return receipt requested, or reliable
overnight courier,addressed as follows:
Grantor: Osgood RT-1 2 5 Project, LLC
c/o Hillwood Development Company
5050 W.Tilgham Street,Smite 435
Allentown,FA 18104
Attn: Gary Frederick
Email: gWArederick&illwood,com
With a copy to: Millwood Enterprises, L.F.
c/o Hillwood Development Company
3000'Turtle Creek Blvd.
Dallas,Texas 75219
Attn: Marla bong and John Ernst is
Email:marla.lon hillwood.com;
jgk.ems1ie@hillwqod-com
Grantee: 1600 Osgood.Strect LLC
1600 Osgood Street
North Andover,Massachusetts 01845
Attu:brit Goldstein
Email. o oldstein o o erties,corn
With a copy to: R.uberto,Israel&Weiner
255 State Streets 7h Floor
Boston,Massachusetts 02109
Attu: Michael D.Rosen,Esq.
Email:mdr Com
(aa 1 7336s;O)
Euvmt Agreement--1450 Osgood 5fivet--Page 5
Bk 16636 Pg1.45 #34295
A party may change the address or person to whom notices to it are required to be given
by providing proper notice to the other party in the manner provided in Section 13.
14. Taxes;Insurance;Indemnification.
a. Grantor acknowledges and agrees that Grantor is obligated, at Grantor's sole
cost and expense, to constrict, repair and maintain the Easem cnt Area and all
improvements therein, subject to and in accordance with all applicable pmiits
and approvals issued for the Project, including without limitation all permits
and approvals issued by the 'Town of Noah Andover Planning Board;
provided, however, to the extent such impair or maintenance is rewired as a
result of damage or misuse of the Easement Area by Grantee or Grantee
Parties,then Grantee shall be responsible for such damage or rni suse and shall
be responsible for such cost and expense.Grantee shall remit such payment to
Grantor within thirty(30)days of receipt of an invoice therefor from Grantor.
Grantor shall keep the Easement Area free of any liens arising out of any work
performed for,materials f nuished to,or obligations incurred by Grantor.
b. Grantor shall keep the Easement Area free of any liens arising out of any work
performed for,materials f -nished to,or obligations incurred by Grantor.
c. Grantor shall pay any real estate taxes or other assessments levied on the
Easement Area,
d. Grantee and Cwantor shall each be required to carry general liability insurance
against claims of bodily and personal injury or death and property damage
occasioned by or arising from their use of the Easement Area, and the use of
their respective successors, assigns, tenants, employees, contractors, agents,
licensees and invitees. Each party shall furnish cerdfi+cates 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 One
Million Dollars ($1,000,000) per person and Three Million Dollars
($3,000,000)per occurrence. Grantor and Grantee:shall be required to preview
and, if commercially reasonable, adjust the required amount of insuranm
coverage every five(5) years,bcgmmg upon the expiration of five(5) years
following the execution of this Easement Agreement.
e. Grantor shall release, indemnify, defend and hold bannIess Grantee, its
tenants and affiliates and its and their respective agents, servants, directors,
officers and employees (collectively, "Grantee Indemnitees"), from and
against any and all losses, liabilities, dam ages, costs and expenses (including
reasonable attorneys' fees) resulting from claims occasioned by (i) injuries to
any person or damage to,or theft or loss of,property occurring in or about the
(00173366;v3)
Easement Agreement—1450 Osgood Street—Page 6
Bk 16636 Pg146 #34295
Easement Area its connection with the Easement and Cvantor's use of the
Easement Area or (ix) any actual or alleged breach of this Easement
Agreement by Grantor. In case any action or proceeding is brought against
any Grantee Indemmtee and such claim is a claim from which Grantor is
obligated to indemnify Grantee Indetnnitees pursuant to Ws Section,Grantor,
upon notice from Grantee, shall resist and defend such aeon or proceeding
with respect to that clam (by counsel reasonably satisfactory to Grantee,
except such consent is not required if such defense is provided by Grantor's
insurer) at Grantor's expense. Nothing herein shall be deemed to require
Grantor to indemnify Grantee Indemnitees from any claim arising to the
extent of their own negligence,willful misconduct,or breach of this Easement
Agreement.
f. Gmntee shall release, indemnify, defend and hold harmless grantor, its
tenants and affiliates and its and their respective agents, servants, directors,
officers and employees (collcctively, `'Grantor Yndemnitees"), from and
against any and all losses, liabilities, damages, costs and expenses (including
cc r
reasonable attorneys' fees)resulting from claims occasioned by (i) injuries to
any person or damage to, or theft or loss of,property occurring in or about the
Easement Area in connection with the Easement and Q-antee's use of the
Easement Area or (H) any actual or alleged breach of this Easement
Agreement by Santee. In case any action or proceeding is brought against
any grantor Indemnitee and such claim is a claim from which Grantee is
obligated to indemnify Grantor Indemnitees pursuant to this Section,Grantee,
upon notice from Grantor, shall resist and defend such action or proceed"
with respect to that claim (by counsel reasonably satisfactory to Gmntor,
except such consent is not required if such defense is provided by Grantee's
insurer) at Grantee's expense. Nothing herein shall be deemed to require
Grantee to indemnify grantor indern itees from any claim arising to the
extent of their own negligence,willful nuscond=4 or breach of this Easement
Agreement.
15.Miscellaneous.
a. The laws of the gormonwealth of Massachusetts shall govern the
interpretation and performance of this Easement Agreement, and courts within the
Commonwealth shall have sole and exclusive jurisdiction over any disputes.
b, If any provision of this Easement Agreement or the application thereof to
any person or cirmwtance is found to be invalid,the remainder of the provisions of this
Easement Agreement, or the application of such provision to persons or circumstances
other than those as to which it is found to be invalid, as the case may be, shall not be
affected thereby.
C. No alteration or variation of this Easement. Agreement shall be valid or
binding unless contained in writing executed by the parties hereto.
(40 1,73366;v3)
Faserncnt A m nment—14$0 Osgood Start—Page 7
Bk 16636 Pg1.47 #342 95
d. Should there be more than one Cwmtor, the obligations imposed by this
Easement Agroment upon each Grantor shall be joint and several, Should there be more
than one Grantee, the obligations imposed by this Easement Agremnent upon each
Grantee shall be joint and several.
e. The covenants, terms, conditions and restrictions of this Easement
Agent shall be binding upon, and inure to the benefit of, the parties hereto and all
parties having or acquiring any right,title or intemt in any portion of the Easement Area,
including holders of subdivision deeds, and shall continue as a servitude m
perpetuity with the Grantor property for the benefit of the Grantee Property. Nothing
contained in this Agreement will be deemed to constitute a gif,g mt or dedication of any
portion of the Grantor Property or the Grantee Propfrty to the general public or for any
public purpose whatsoever, it being the intention of the Grantor and Grantee that this
Easement Agreement will be strictly limited to the private use of the Grantor, Grantor
Pm-ties,Grantee and Grrantec Parties.
f, The captions in this Easement Agreement have been inserted solely for
convenience of reference and are not a part of this Easement Agreement and shall have
no effect upon construction or interpretation,
g. This Easement Agreement may be executed in multiple counterparts, each
of which shall be deemed an original, and all of which, taken together, shall constitute
one instr ment.
[Signature pages ollo w this,gage.)
(QQ1733f6;0)
Emmcnt Agreement—1450 Osgood Sttm—Page 8
Bk 16636 Pg148 #3 42 95
To HAVE AND TO HOLD unto Gxantoo, its sumsars and assigns forever. The
covenants, term and conditions, restrictions and purposes unposed with this Easement
Agreement shad not only be binding upon Grantor but also on fs agenu, personal
representatives,assign and all other successors to it m interest and shall continue as a servitude
IV runmg inn peqvtWty wb the Cmwtor property.
IN WIMSS WUREOF,, Gmntor has oet its hind and seal on the day aid year first
above written,and directs that this itmhument he recorded in the office of the County of Essex.
GRANTOR.,
D COOD RT-I25 PROTECT,LLC,
a.Delaware united liability company
By:
r
N e:
Title: S nor Vice Pros ident
STATE OF TES
COUNTY of DALLAS
On this 7� day of November, 2020, before me, the undcsigned notary public, personally
appeared Larry Bair, Senior Vice President of OS C OOD.RT-i 25 PROJEC'T, LLC, a Delaware
limited liability company, proved to me through satisfactory evidence of identification, which
was petsonal knowledge, to be the person whose name is signed on the preceding or attached
document,and acknowlodged to nw that he signed it voluntarily for its stated purpose.
a " JUUA WICXES
] o;'icial signature and SW of notary) Ksrtary I01 37 sr36
MY COMMIsslon expires
fttsber S!2024
(041733w,v3)Eascmnt Agrmncm—1450 ospad Stred—Signet=Pop
13]� 16636 Pg149 #34295
GRANTEE:
1600 O SGOOD STREET LLC,
a Massachusetts limited liability company
* �"'" r ........
Name: Ron Z anzige
Tide: Authorized Signatory
COMMONWEALTH OF MASSACHUSETTS
COUNTY OF t!0&jjA
On this i� day of Novembcrr, 2020, before me the undersigned notmy public, personally
appeared Ron Zwanziger, Authorized Signatory of 1600 OSGOOD STREET LLC# a
Massachusetts limited liability company, proved to me through satisfactory evidence of
identification, which was persorW knowledge, to be the person whose name is signed on the
preceding or attached document, and acknowledged to me that he signed it voluntarily for its
stated purpos .
a j official signatme and seal.of
MICHAEL DANA ROSEN
Notary Public
Commonwealth of Massachusetts
My eon;MS1.on Expires August 27,2021
(00173356;v3)moment Agreement--1450 Osgood Street—Signature Page
16636 Pg150 #34295
EXHIBIT"A"
Easement Plan
See attached plan entitled;" mement Pan,"prepared by Fagan Engineering and
Eniro mental SerAces,Inc.,with reference to Project: 1600 Osgood Streets forth Andover,
Massachusetts,dated November 12,2020,last revised 11l1 7120
(00173366Md} ement Agx►�nent�-1450 Osgcod Street-�Exhibit"A"
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EXHIBIT"B"
Legal Description of Easement Area
PROPOSED ACCESS EASEMENT IN FAVOR OF LOT A
1450 OSGOOD STREET
Beginning at a point in the westerly highway line of Osgood Street and the southeat corner of
Lot A, said point being the northeast coiner of Lot B and the northeast corner herein described
easement;
Thence S 13* 37121" E along the westerly highway line of Osgood Street, a distance of 129.36"
to a point of curvature;
Thence along a non-tangent curare through Lot E, curving to the left, with an arc length of
54.49',a radius of 35.56',an included angle of 87"47 49", subtended by a chord which bears N
60103'43"W with a chord length of 49.32'to a point of compound curvature;
Thence along a non-tangent curve through Lot B, cunning to the left, with an are length of
95.62',a radius of 109,00',an included angle of 50' 15'49", subtended by a chord which bears S
491151' 05" W with a chord length of 92.59' to a port of non-tangency;
Thence S 24143' 10"W through Lot B,a distance of 226.53'to a point;
Thence N 65° 16'50" W through Lot B,a distaancc of 54.00' to a point on the division line of Lot
rA.and Lot B;
Thence N 24'43' 10" E along said division lime, a distance of 221.32'to a point;
Thence N 111 32'41"E along said division line,a distance of 152.19'to a point;
Thence N 76'22' 10"E along said division line,a distance of 56.23'to the point of beginning;
Containing approximately 24,511 Square Feet(0,56270 Acres).
(00173366;O)Eownent Agreement—1450 Osgood 5trcd--Exhibit"A"