FINAL signed 8_16_2010 City Drainage Outfall Easement v2Affected land: Off Burt’s Pit Road, Northampton
EASEMENT AGREEMENT
This Easement Agreement (“Agreement”) is dated as of this ____ day of August, 2010, by and between the CITY OF NORTHAMPTON, a Massachusetts municipal corporation, having an address
at 210 Main Street, Room 11, Northampton, Massachusetts 01060 (the “City”) and HOSPITAL HILL DEVELOPMENT LLC, a Delaware limited liability company, having its principal place of business
at 160 Federal Street, Boston, Suffolk County, Massachusetts 02110 (“HHD”).
RECITALS
WHEREAS, pursuant to Chapter 52 of the Acts of 1993 and Chapter 86 of the Acts of 1994 as amended by Chapter 307 of the Acts of 1994, the Commissioner of DCAM was authorized to convey
to a developer certain real property located in Northampton, Massachusetts, being a portion of the former Northampton State Hospital property, containing 126 acres, more ore less, consisting
of Parcels A, B, E and H as shown on that certain plan entitled “Boundary Survey of Land of the Commonwealth of Massachusetts formerly the Northampton State Hospital, Northampton, Massachusetts”
dated December 17, 1996, last revised December 18, 1997, prepared by Roberge Associates Land Surveying and recorded with the Hampshire County Registry of Deeds in Plan Book 183, Pages
1 through 6 (“HHD Property”).
WHEREAS, by release deed dated November 25, 2002 and recorded in the Hampshire Country Registry of Deeds at Book 6925, Page 302, and pursuant to a Land Disposition Agreement dated as
of September 56, 2002, between the Commonwealth and The Community Builders, Inc. a Massachusetts charitable corporation having an address of 95 Berkley Street, Boston, Massachusetts
and recorded in the Hampshire County Registry of Deeds at Book 6925, Page 302, the Commonwealth conveyed the HHD Property to HHD; and
WHEREAS, the City and HHD desire to grant certain easements to further the development of the HHD Property and confirm the arrangements for the construction, use, and maintenance of
a drainage outfall system.
WHEREAS, the City has consulted with the Northampton Recreation Commission, and they concur with the granting of the easements set forth herein.
AGREEMENTS
NOW, THEREFORE, in consideration of the mutual promises contained herein and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the
parties hereto agree as follows:
1. Drainage Outfall Easement
1.1. The City hereby grants to HHD and all persons claiming by, through or under HHD, a perpetual and exclusive right and easement as appurtenant to the HHD Property, in, through, over
and across the area located on the City Property, and as shown as the “Proposed Drainage Easement G-1” on the easement plan entitled “Proposed Easement Plan: Detention Basin 3” and prepared
by Sherman & Frydryk, Land Surveying and Engineering, 3 Converse Street, Suite 203, Palmer, MA 01069 dated July 9, 2010 (the “Outfall Easement Plan”) and recorded in the Hampshire County
Registry of Deeds at Plan Book ______, Page _______, for the purposes of installing and maintaining a drainage outfall system serving the HHD Property (the “Drainage Outfall System”),
including underground drainage pipes within the Proposed Drainage Easement G-1, for the purpose of connecting to and discharging on-site stormwater (which includes natural drainage)
onto the City Property pursuant to the Outfall Easement Plan and the Order of Conditions of the City Northampton Conservation Commission dated July 26, 2007 and recorded in the Hampshire
County Registry of Deeds at Book 9282, Page 105 (“Order of Conditions”). The Proposed Drainage Easement G-1 is more fully described on Exhibit A attached hereto and is referred to herein
as the “Outfall Easement”.
1.2 The City hereby grants to HHD and all persons claiming by, through or under HHD, a perpetual, non-exclusive, access easement on, over, through and across the City Property, with
pedestrian and vehicular access thereto, for the purpose of maintaining and servicing the Drainage Outfall System (the “Access Easement”).
2. Maintenance of Drainage Outfall.
2.1 HHD, its successors and assigns, shall be responsible for the maintenance and repair of the Drainage Outfall System, consistent with any Stormwater Operation, Maintenance and Inspection
Agreement between the City of Northampton and HHD and good management practices. Monitoring will be done quarterly and following significant storm events. Such monitoring shall include
(i) the observation of the pool area immediately following the pipe outlet, noting the level of silt/sand buildup and cleaning it out as necessary; (ii) observation of all downstream
areas to review possible erosion requiring repair and performance of any necessary repair; and (iii) the observation of the integrity of headwall structure, noting erosion/settlement
and cracking, and repairing as necessary. Any maintenance and repair of the Drainage Outfall System, shall be consistent with the Order of Conditions, good management practices, and
shall be in accordance with any required permits and approvals.
2.2 HHD, its successors and assigns, will pay when due all bills for labor and materials pertaining to any maintenance of the Drainage Outfall System, and prevent any lien based on any
of the foregoing from being recorded or perfected or otherwise affecting or otherwise attaching to City Property, and without limitation, upon any such recording, perfecting or attachment,
will cause the same to be discharged and released of record immediately.
2.3 During any maintenance of the Drainage Outfall System, HHD shall, at its sole cost and expense, maintain the following insurance:
(a) Commercial general liability, including personal injury and, if applicable, product liability/completed operations coverage in the minimum amount of One Million Dollars ($1,000,000.00)
personal injury, One Million Dollars ($1,000,000.00) per occurrence and Two Million Dollars ($2,000,000.00) general/product/completed operations aggregate;
(b) Automobile liability coverage for owned, hired and non-owned vehicles in the minimum amount of One Million Dollars ($1,000,000.00) per occurrence combined single limit; and
Workers' compensation for all its employees, with employers’ liability of Five Hundred Thousand Dollars ($500,000.00) or more.
2.2 The Drainage Outfall System and Outfall Easement constitute a Stormwater Facilities under the Consolidated Restatement and Amendment of Declaration of Covenants, Restrictions, Maintenance
and Easement Agreement dated April 17, 2008 and recorded in the Hampshire County Registry of Deeds at Book 9457, Page 1 (“Declaration”). The obligations of HHD, the Village at Hospital
Hill—North Association and Owners under the Declaration concerning the maintenance of Stormwater Facilities shall include that maintenance and repair of the Drainage Outfall System.
3. General Provisions.
3.1 This Agreement shall be construed and enforced in accordance with the laws of the City of Massachusetts without regard to its conflicts of laws provisions. Any determination of
invalidity or unenforceability of any provision of this Agreement shall not affect the validity or enforceability of the remaining provisions of this Agreement.
3.2 This Agreement may be executed in any number of counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument,
and may not be changed or modified except as agreed in a writing signed by each of the parties.
3.3 This Agreement and the rights contained herein, including any and all changes or modifications that may be made, shall be binding upon and inure to the benefit of, the parties and
their respective successors and assigns.
3.4 The covenants and agreements created hereby are intended to be, and shall be deemed to be, covenants running with the land and are not personal to any individual party and shall
be deemed to both benefit and burden the HHD Property and City Property respectively, in the manner provided herein.
3.5 Each party hereby agrees that it will execute and deliver any and all assurances of law and other instruments, and take any and all action, which any other party hereto deems necessary
or desirable to carry out any term or provision of this Agreement or to continue this Agreement in full force and effect for the term hereof.
3.6 Nothing contained in this Agreement shall be construed to make the parties hereto partners or joint venturers, or to render any party hereto liable for the debts or obligations
of any other party hereto.
3.7 All notices and other communications to be given in connection with this Agreement shall be in writing and shall be sent by (a) United States Postal Service, registered or certified
mail, return receipt requested, postage prepaid, (b) nationally recognized overnight courier service guaranteeing overnight delivery; or (c) facsimile transmission (if confirmed orally
or in writing by mail or overnight courier service as aforesaid) addressed to such party at the respective addresses set forth below beside such party’s name:
(a) To Hospital Hill: c/o Massachusetts Development Finance Agency 160 Federal Street
Boston, MA 02110
Attention: Executive Vice President-Real Estate
Facsimile: 617-330-2001
With a copy to: Massachusetts Development Finance Agency
160 Federal Street
Boston, MA 02110
Attention: General Counsel
Facsimile: 617-330-2054
To the City: Northampton City Hall
210 Main Street
Northampton, Massachusetts 01060
Attention: Mayor
With a copy to: Director of Dept of Public Works
125 Locust Street
Northampton, Ma.01062
except that any party may by written notice to other parties designate another address that shall thereupon become the effective address of such party for the purposes of this paragraph.
Notice shall be deemed given: (a) three (3) business days after mailed by United States Postal Service; (b) on the next business day if sent by nationally recognized overnight courier;
and (c) on receipt if sent by facsimile (and confirmed orally or by mail or overnight courier service as before said).
Executed under seal as of the date first set forth above.
CITY OF NORTHAMPTON
By:_____________________________________
Name: Mary Clare Higgins
Title: Mayor
Duly Authorized by a City Council Order attached as Exhibit B hereto
COMMONWEALTH OF MASSACHUSETTS
Hampshire County, ss.
On this ___ day of August 2010, before me, the undersigned notary public, personally appeared Mary Clare Higgins, and proved to me through satisfactory evidence of identification, which
was personal knowledge of the undersigned, to be the person whose name is signed on the preceding or attached document(s), and acknowledged to me that she signed it voluntarily for its
stated purpose, as Mayor of the City of Northampton.
(official seal)
Wayne M. Feiden, Notary Public
My commission expires: October 14, 2016
HOSPITAL HILL DEVELOPMENT, LLC, a Delaware limited liability company
By: MASSACHUSETTS DEVELOPMENT
FINANCE AGENCY, its manager
By:__________________________________
Name: Robert L. Culver
Its: President and Chief Executive Officer
Duly Authorized
By: __________________________________
Name: John L. Champion
Its: Treasurer
Duly Authorized
COMMONWEALTH OF MASSACHUSETTS
Suffolk County, ss.
On this ___ day of ______, 2010, before me, the undersigned notary public, personally appeared Robert L. Culver, and proved to me through satisfactory evidence of identification, which
was photographic identification with signature issued by a federal or state governmental agency, oath or affirmation of a credible witness, personal knowledge of the undersigned,
to be the person whose name is signed on the preceding or attached document(s), and acknowledged to me that he signed it voluntarily for its stated purpose, as President and Chief Executive
Officer of Massachusetts Development Finance Agency, as Manager of Hospital Hill Development, LLC.
(official seal)
Notary Public
My commission expires:
COMMONWEALTH OF MASSACHUSETTS
Suffolk County, ss.
On this ___ day of ____________, 2010, before me, the undersigned notary public, personally appeared John L. Champion, and proved to me through satisfactory evidence of identification,
which was photographic identification with signature issued by a federal or state governmental agency, oath or affirmation of a credible witness, personal knowledge of the undersigned,
to be the person whose name is signed on the preceding or attached document(s), and acknowledged to me that he signed it voluntarily for its stated purpose, as Treasurer and Executive
Vice President of Finance & Administration and Chief Financial Officer of Massachusetts Development Finance Agency, as Manager of Hospital Hill Development, LLC.
(official seal)
Notary Public
My commission expires:
EXHIBIT A
Legal Description of Outfall Easement
A certain parcel of land shown as “Proposed Drainage Easement” on a plan entitled “Plan of Land in Northampton, MA, Prepared for Hospital Hill Development, LLC, Proposed Easement Plan,
Detention Basin 3” dated July 9, 2010 by SHERMAN & FRYDRYK, Land Surveying and Engineering and recorded in the Hampshire Registry of Deeds Plans ____, Page ____, bounded and described
as follows;
Beginning at a point on the westerly line of property of City of Northampton (Parcel G) as shown on said plan, said point being located S 51o 26’ 33” W a distance of eighty one and 81/100
(81.81’) feet from the northwesterly corner of said Parcel G turning and running;
S 47( 28’ 48” E sixty three and 73/100 (63.73’) feet within said Parcel G to a point, thence turning and running;
S 82( 33’ 47” E one hundred twenty four and 22/100 (124.22’) feet within last named land to a point on the westerly line of land of Hospital Hill Development, LLC (Parcel F) as shown
on said plan, thence turning and running;
S 43( 57’ 01” E seventy six and 79/100 (76.79’) feet along last named land to a point, thence turning and running;
S 77( 37’ 38” W thirty one and 18/100 (31.18’) feet within said Parcel G to a point, thence turning;
N 12( 21’ 52” W thirty and 28/100 (30.28’) feet within said Parcel G to a point, thence turning;
N 82( 33’ 47” W one hundred fifty four and 11/100 (154.11’) feet within said Parcel G to a point, thence turning;
N 47( 28’ 48” W thirty four and 40/100 (34.40’) feet within said Parcel G to a point, thence turning;
S 51( 26’ 33” W twenty seven and 42/100 (27.42’) feet within said Parcel G to a point, thence turning;
N 38( 33’ 27” W forty three and 00/100 (43.00’) feet within said Parcel G to a point on the westerly line of said Parcel G and the easterly line of land of the Department of Food and
Agriculture as shown on said plan, thence turning;
N 51( 26’ 33” E fifty one and 04/100 (51.04’) feet along last named land to the point of beginning.
Containing an area of 8,217 Square Feet or 0.188 Acres
EXHIBIT B
City Council Order
C:\Feiden Files\Village Hill\FINAL signed 8_16_2010 City Drainage Outfall Easement v2.doc - 9 -
Grantee Draft
8/26/2010
C:\Feiden Files\Village Hill\FINAL signed 8_16_2010 City Drainage Outfall Easement v2.doc