HomeMy WebLinkAbout2013-04-24 BOS Packet - Released
SELECTMEN’S MEETING
Wednesday, April 24, 2013
Selectmen Meeting Room
6:00 p.m.
AGENDA
ITEMS FOR INDIVIDUAL CONSIDERATION
1.Approve Purchase and Sale Agreement for 33 Marrett Road
EXECUTIVE SESSION
1.Exemption 6 – Discuss Purchase and Sale Agreement for 33 Marrett Road
ADJOURN
The Board of Selectmen is expected to go immediately into executive session at the beginning of
the meeting and then return to open session.
The next meeting of the Board of Selectmen is scheduled for Monday, May 6, 2013 at 7:00 p.m.
in the Selectmen Meeting Room, Town Office Building, 1625 Massachusetts Avenue.
Hearing Assistance Devices Available on Request
All agenda times and the order of items are approximate and subject to change.
PURCHASE AND SALE AGREEMENT
As of this ___ day of April, 2013 (the “Effective Date”):
1.Parties and Mailing Addresses:
Trustees of the Supreme Council of the Ancient Accepted Scottish Rite of Free Masonry,
a Massachusetts charitable corporation, having an address of 33 Marrett Road, Lexington,
Massachusetts 02420 (the “SELLER”), agree to SELL and
The Town of Lexington, by and through its Board of Selectmen, having an address of
1625 Massachusetts Avenue, Lexington, Massachusetts 02420 (the “BUYER), agrees to
BUY, upon the terms set forth herein, the following described premises:
2.Description:
Land containing approximately 10 acres identified as “39 Marrett Road” (the “Property”)
on the plan attached hereto as Exhibit A (the “Sketch Plan”). The Property consists of
portions of the properties identified on Lexington Assessor’s Map 31 as Lots 63A and
63B.
For SELLER’s title to the Property, see deed to SELLER dated April 29, 1968 and
recorded with the Middlesex South Registry of Deeds in \[Book 11498, Page 14\].
3.Title Deed:
The Property is to be conveyed by a good and sufficient quitclaim deed running to
BUYER, and said deed shall convey good and clear record and marketable title thereto,
free from encumbrances, except
(a)Provisions of existing building and zoning laws;
(b)Any liens for municipal betterments assessed after the date of this
Agreement; and
(c)Easements, restrictions and reservations of record, so long as they do not
interfere with BUYER’s anticipated or proposed use of the Property.
\[The remainder of this page has been intentionally left blank.\]
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4.Purchase Price:
The agreed purchase price for the Property is Ten Million Nine Hundred Fifty Thousand
($10,950,000.00) Dollars (the “Purchase Price”), of which
$ 1,000.00 has been paid as a deposit this day (the “Deposit”);
$ 10,949,000.00 is to be paid at the time of delivery, acceptance and
recording of the deed by wire transfer.
$ 10,950,000.00 TOTAL
5.Time for Performance; Delivery of Deed
:
th
Such deed is to be delivered at 10:00 A.M. on the 30 day of November 2013 (the
“Closing Date”) at the office of the Lexington Town Manager at 1625 Massachusetts
Avenue, Lexington, Massachusetts 02420, provided BUYER and SELLER shall have the
right to extend the Closing Date by up to thirty (30) days upon written notice to the other
party not less than five (5) days prior to the Closing Date, and provided further that
SELLER shall not be entitled to extend under this paragraph if it has already extended the
Closing Date under Paragraph 7 herein. It is agreed that time is of the essence of this
Agreement.
6.Possession and Condition of Property:
Full possession of the Property free of all tenants and occupants is to be delivered at the
time of the delivery of the deed, the Property to be then in compliance with provisions of
any instrument referred to in Paragraph 3 hereof.
7.Extension to Perfect Title or Make Property Conform:
If at the time for performance of this Agreement SELLER shall be unable to give title or
to make conveyance, or to deliver possession of the Property, all as herein stipulated, or if
at the time of the delivery of the deed the Property does not conform with the provisions
hereof, as the case may be; (a) SELLER shall give written notice thereof to BUYER at
least three (3) days before the time for the delivery of the deed, (b) SELLER shall use
diligent, good faith efforts to remove any defects in title or to deliver possession as
provided herein or to make the Property conform to the provisions hereof, and (c) upon
the delivery of the notice mentioned above, the Closing Date shall be extended for a
period of up to thirty (30) days, provided, however, that (y) such extension period shall
be for as short a period as is required by SELLER to effect such necessary cure to the title
or condition of the Property and (z) SELLER shall not be entitled, without BUYER’s
consent, to extend under this Paragraph 7 if it has already extended the Closing Date
pursuant to Paragraph 5 herein. SELLER’s diligent good faith efforts hereunder shall not
require SELLER to expend more than $54,750, exclusive of sums paid to discharge
mortgages, monetary liens and/or municipal charges.
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8.Failure to Perfect Title or Make The Property Conform:
If, at the expiration of the extended time provided in Paragraph 7 above, despite
SELLER’s diligent and good faith efforts, SELLER shall have failed so to remove any
defects in title, deliver possession, or make the Property conform, as the case may be, all
as herein agreed, then any payments made under this Agreement shall be forthwith
refunded and all other obligations of the parties hereto shall cease and this Agreement
shall be void without recourse to the parties hereto.
9.BUYER’s Election to Accept Title
:
BUYER shall have the election, at either the original Closing Date or any extended
Closing Date, to accept such title as SELLER can deliver to the Property in its then
condition and to pay therefor the Purchase Price without deduction, in which case the
SELLER shall convey such title to BUYER.
10.Acceptance of Deed:
The acceptance and recording of a deed by BUYER shall be deemed to be the full
performance and discharge of every agreement and obligation herein contained or
expressed, except such as are, by the terms hereof, to be performed after the delivery of
said deed.
11.Use of Purchase Money to Clear Title:
To enable SELLER to make conveyance as herein provided, SELLER may, at the time of
delivery of the deed, use the purchase money or any portion thereof to clear the title of
any or all encumbrances or interests, provided that all instruments so procured are
recorded simultaneously with the delivery of said deed or, with respect to institutional
mortgages only, as soon as possible thereafter in accordance with applicable laws and
conveyancing practices.
12.Deposit:
The Deposit made hereunder shall be held in escrow by the law firm of Anderson &
Kreiger LLP (the “Escrow Agent”) in accordance with the terms and conditions of this
Paragraph 12 and the agreement affixed hereto as Exhibit B (the “Escrow Agreement”).
13.BUYER’s Default; Damages:
If BUYER shall fail to fulfill BUYER’s agreements herein, all deposits made hereunder
by BUYER shall be paid to SELLER as liquidated damages and this shall be SELLER's
sole and exclusive remedy at law or in equity for any breach of this Agreement by the
BUYER.
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14.ANR or Subdivision Plan:
The boundaries of the Property are not consistent with the current record boundaries. In
order to create a record lot for conveyance to BUYER, SELLER has obtained an
endorsement of an “Approval Not Required” or ANR plan (the “ANR Plan”) establishing
the boundaries of the Property to be conveyed hereunder. Prior to or on the Closing Date,
SELLER shall record the ANR Plan with the Middlesex South County Registry of Deeds.
If, despite SELLER’s diligent and good faith efforts, SELLER is unable to record the
ANR Plan on or before the Closing Date, BUYER shall be entitled to terminate this
Agreement. In the event of any such termination, all deposits under this Agreement shall
be promptly returned to BUYER.
BUYER and SELLER agree that BUYER may elect to cause granite bounds to be set to
delineate all or any portion of the Property prior to the Closing Date at BUYER’s sole
cost and expense.
15.Common Driveway and Parking Lot Easement:
Simultaneously with the closing of the conveyance of the Property, SELLER shall grant
BUYER a perpetual, non-exclusive easement (the “Easement”) appurtenant to the
Property to use the common driveway and an area for a parking lot on SELLER’s
remaining property shown as “Shared parking and driveway access” on the sketch plan
attached hereto as Exhibit C for access to and parking for the Property. The Easement
shall be substantially in the form attached hereto as Exhibit D and made a part hereof,
and the Easement shall be recorded with the Middlesex South Registry of Deeds at the
time of closing.
16.Commander’s House:
The parcel of land that includes the improvement known as the “Commander’s House”,
consisting of approximately .5 acres, the boundaries of which shall be mutually agreed to
by SELLER and BUYER in connection with SELLER’s preparation, and BUYER’s
approval, of the ANR Plan (the “Commander’s House Parcel”), shall remain in the
ownership of SELLER and SELLER shall remain liable for payment of any real estate
taxes lawfully assessed by the Town of Lexington or payment in lieu of taxes for the
Commander’s House Parcel.
BUYER and SELLER agree that BUYER shall have a right of first offer to purchase the
Commander’s House Parcel. Prior to the Closing Date, the parties will enter into a Right
of First Offer for the Commander’s House Parcel substantially in the form attached
hereto as Exhibit E.
17.Intentionally Deleted.
18.Due Diligence Period:
BUYER shall have a due diligence period of ninety (90) days commencing on the
Effective Date (the “Due Diligence Period”) during which BUYER shall have full
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opportunity to inspect, take measurements, conduct surveys, perform tests, show the
Property to contractors, architects, surveyors, engineers and insurers, and make legal,
engineering and other reviews or investigations of the Property, including, without
limitation, title analysis, environmental site assessments, soil and groundwater tests, well
drilling, percolation tests, property surveys, and evaluations of utilities.
Within ninety (90) days of the commencement of the Due Diligence Period (the “Title
Review Period”), BUYER shall deliver written notice (the “Title Objection Notice”) to
the SELLER specifying any objections that BUYER may have to any title matters
relating to the Property, including the area subject to the Easement as described in
Paragraph 15. Promptly after the receipt of the Title Objection Notice, SELLER shall use
diligent, good faith efforts to address any objections raised by BUYER to BUYER’s
reasonable satisfaction prior to the Closing Date. In the event that, despite SELLER’s
diligent and good faith efforts, SELLER cannot remove any objections as provided above
prior to the Closing Date, SELLER’s right to extend the closing as set forth in Paragraph
7 hereof shall automatically be waived for the matters identified in the Title Objection
Notice and Buyer shall have the rights set forth in Paragraphs 8 and 9 hereof.
BUYER shall have the right to provide a supplementary Title Objection Notice at any
time up to the Closing Date respecting those defects in title to the Property, including the
area subject to the Easement, arising after the earlier date of BUYER’S title report or
survey or the expiration of the Title Review Period.
SELLER shall cooperate with BUYER to give BUYER access to the Property during the
Due Diligence Period. If any consent or approval with respect to any activities by
BUYER is required of SELLER by law, at BUYER’s discretion and expense, SELLER
shall use reasonable good faith efforts to obtain all consents and approvals needed for
BUYER to perform environmental monitoring, sampling and physical testing.
Prior to engaging in any test or investigation that could damage any portion of the
Property, BUYER shall give SELLER three (3) business days’ notice and the opportunity
to have a representative or employee of SELLER present during such activity. BUYER
shall use reasonable efforts to repair, at its sole cost and expense, any damage to the
Property caused by such tests or investigations.
If BUYER is not satisfied in its sole judgment with any of the information obtained by
BUYER while conducting the due diligence identified above (other than title objection
issues that are controlled by the second and third paragraphs of this section as well as
other relevant paragraphs of this Agreement), then BUYER shall have the right to
terminate this Agreement by written notice to SELLER at any time or prior to 5:00 p.m.
on the last day of the Due Diligence Period.
19.Title:
It is understood and agreed by the parties that the Property shall not be in conformity with
the title provisions of this Agreement unless:
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A.All buildings, structures and improvements, including, but not limited to, any
driveways, garages, fences, septic systems and all means of access to the
Property, are located completely within the boundary lines of said Property
and shall not encroach upon or under the property of any other person or
entity (except for the Easement as provided in Paragraph 15 herein);
B.No building, structure or improvement of any kind belonging to any other
person or entity encroaches upon or under said Property;
C.Title to the Property is insurable at normal title insurance premium rates, for
the benefit of BUYER by a nationally-recognized title insurance company
upon delivery from SELLER to BUYER of the deed contemplated by this
Agreement and upon recordation of such deed, by an owner’s title insurance
policy (on the current ALTA form) insuring fee title in BUYER free from all
exceptions other than those exceptions set forth in Paragraph 3 or elsewhere in
this Agreement; and
D.Certificates of Compliance for any outstanding Orders of Conditions
pertaining to wetlands have been recorded or delivered for recording at
closing.
20.Access:
In addition to BUYER’s rights set forth in Paragraph 18, BUYER and its agents shall
have the right of access to the Property prior to the Closing Date for the purpose of
inspecting the condition of the Property.
21.Notices:
All notices required or permitted to be given hereunder shall be in writing and delivered
by hand or sent by Federal Express or other recognized overnight delivery service or by
facsimile (with proof of transmission):
in case of notice to SELLER, to: Trustees of the Supreme Council of the Ancient
Accepted Scottish Rite of Free Masonry
33 Marrett Road
Lexington, MA 02421
Attn: James Dill
Fax: 781.863.1833
with a copy to: Stephen M. Politi, Esq.
Engel & Schultz LLP
One Federal Street, Suite 2120
Boston, MA 02110
Fax: 617.951.0048
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in case of notice to BUYER, to: Carl Valente
Town Manager
Town of Lexington
1625 Massachusetts Avenue
Lexington, MA 02420
Fax: 781.861.2921
with copies to: Ryan D. Pace and Stephanie B. Dubanowitz
Anderson & Kreiger LLP
One Canal Park, Suite 200
Cambridge, MA 02141
Tel: 617.621.6551
Fax: 617.621.6651
Any such notice shall be deemed given when so delivered by hand or, if sent by Federal
Express or other recognized overnight delivery service, on the next business day after
deposit with said delivery service, or if by facsimile (with proof of transmission), on the
same business day.
22.REBA Standards:
Any matter or practice arising under or relating to this Agreement that is the subject of a
title or practice standard of the Massachusetts Real Estate Bar Association shall be
governed by such standard to the extent applicable, unless specifically provided
otherwise in this Agreement.
23.Underground Fuel Storage Tanks:
SELLER warrants and represents that, to the best of SELLER’s knowledge and belief,
there are no underground fuel storage tanks on the Property. The provisions of this
Paragraph 23 shall survive delivery of the deed.
24.SELLER’S Delivery of Property Documents:
SELLER acknowledges and agrees that it has delivered to BUYER (a) all environmental
reports and assessments relating to the Property, (b) all geotechnical information relating
to the Property, (c) all existing title documentation, (d) any existing surveys of the
Property, and (e) other such documents and information in SELLER’s control as BUYER
has reasonably requested.
25.SELLER Delivery of Closing Documents:
SELLER shall cooperate with BUYER by executing, acknowledging, swearing to the
truth of the contents and delivering such instruments as may reasonably and customarily
be required by BUYER’s title insurance company and/or BUYER’s attorney in
conjunction with the closing.
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26.Extensions:
By executing this Agreement, BUYER and SELLER hereby grant to their respective
attorneys the actual authority to bind them by facsimile for the limited purpose of
allowing them to grant extensions hereunder, and BUYER and SELLER shall be able to
rely upon the signatures of said attorneys as binding unless they have actual knowledge
that either party has disclaimed the authority granted herein to bind them.
27.Efforts to Cure Title or Condition of the Property:
SELLER shall use diligent, good faith efforts to deliver the Property and the title thereto
as provided herein by the Closing Date.
28.Suits or Judgments:
SELLER represents and warrants to BUYER that SELLER has no notice or knowledge
of any suits or judgments in relation to the Property. The provisions of this paragraph
shall survive the delivery of the deed for the Property or the early termination hereof.
29.Brokers:
SELLER and BUYER each warrant and represent to the other that neither has dealt with
any real estate broker, salesperson, finder, or other person entitled to a commission or fee
in connection with the negotiation or execution of this Agreement or the consummation
of the transaction contemplated hereby. This paragraph shall survive delivery of the deed
for the Property or the early termination hereof.
30.Disclosure of Beneficial Interest Form:
BUYER acknowledges that SELLER has provided the disclosure of beneficial interest
form that is attached hereto as Exhibit F as required under G.L. c. 7, sec. 40J. This form
was filed with the Division of Capital Asset Management of Massachusetts on April 10,
2013.
31.Municipal Purposes:
BUYER is acquiring the Property for municipal purposes. BUYER may elect to acquire
the Property through one or more deeds for portions of the Property running to one or
more municipal entities, boards or commissions upon notification to SELLER at least
seven (7) days before the deed or deeds are to be delivered as herein provided.
32.Municipal Approvals and Processes:
Notwithstanding anything set forth herein to the contrary, BUYER's obligations
hereunder are expressly subject to and contingent upon the approval of the Lexington
Board of Selectmen and all other municipal approvals that are required for the purchase
of the Property, including without limitation the Town of Lexington completing the
notification process for unique real property acquisitions that is described in
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Massachusetts General Laws Chapter 30B, Section 16(e)(2) to the Town of Lexington’s
reasonable satisfaction.
33.Historic Preservation Restriction:
BUYER agrees, after the Closing Date, to impose a perpetual Historic Preservation
Restriction on a portion of the Property that will prohibit development on those certain
areas of the Property identified in green on the plan attached hereto as Exhibit G,
provided that BUYER shall be entitled to create a secondary access way to the west of
the two-story Commander’s House in the area of the way shown on Exhibit G.
\[Agreement to restrict property under consideration by Town. Description of
location of access road to be confirmed by Town.\]
34.Buyer Termination:
In the event of any termination of this Agreement because of any default by SELLER,
then the Deposit made under this Agreement shall be forthwith refunded in accordance
with the Escrow Agreement and BUYER shall be entitled to pursue all remedies
available to it in law and in equity, including without limitation specific performance.
35.Liability of Trustee, Shareholder, Beneficiary, etc.:
SELLER and BUYER are executing this Agreement in a representative or fiduciary
capacity, and only the principal or the estate represented shall be bound; neither the
SELLER nor BUYER so executing, nor any shareholder, board member or beneficiary of
any trust, shall be personally liable for any obligation, express or implied, hereunder.
36.Severability:
If any provision of this Agreement is determined by a court of competent jurisdiction to
be invalid or unenforceable, the remainder of this Agreement shall nonetheless remain in
full force and effect, and in the place of such invalid or unenforceable provision there
shall be substituted a like, but valid and enforceable provision, which comports to the
findings of the aforesaid court and most nearly accomplishes the original intention of the
parties.
37.Prior Documents:
Any prior writing, including that certain Letter of Intent to Purchase Real Estate dated
March 14, 2013, is hereby superseded and shall have no further force and effect.
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38.Interpretation.
The parties acknowledge that any ambiguities are to be resolved against the drafting party
in the interpretation of this Agreement or any exhibits or amendments hereto.
39.Signatures:
Each party to this Agreement agrees that delivery of an executed signature page of this
Agreement to the other party (or its attorney) by facsimile or other electronic
transmission shall be binding on each of the parties as if the original of such facsimile or
other electronic transmission had been delivered to the other party.
40.Construction of Agreement:
This instrument, executed in multiple counterparts, is to be construed as a Massachusetts
contract, is to take effect as a sealed instrument, sets forth the entire contract between the
parties, is binding upon and enures to the benefit of the parties hereto and their respective
successors and assigns, and may be cancelled, modified or amended only by a written
instrument executed by both SELLER and BUYER. The captions and marginal notes are
used only as a matter of convenience and are not to be considered a part of this
Agreement or to be used in determining the intent of the parties to it.
\[The remainder of this page has been intentionally left blank.\]
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In witness whereof, the parties hereto affix their hands and seals as of the date first set
forth above.
BUYER: SELLER:
LEXINGTONTRUSTEES OF THE SUPREME
BOARD OF SELECTMEN COUNCIL OF THE ANCIENT
ACCEPTED SCOTTISH RIGHT OF
FREE MASONRY
_______________________
Deborah N. Mauger, Chair By:__________________________
Name:
_______________________Its: President
Peter C.J. Kelley
_______________________
Norman P. Cohen
_______________________
Hank Mantz
_______________________
Joseph Pato
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11
EXHIBIT A
PLAN OF PROPERTY
A-1
{A0187183.4 }
EXHIBIT B
ESCROW AGREEMENT
WHEREAS, the Trustees of the Supreme Council of the Ancient Accepted Scottish Rite
of Free Masonry (“Seller”), as seller, and the Town of Lexington, having an address of 1625
Massachusetts Avenue, Lexington, Massachusetts 02420 (“Buyer”), as buyer, entered into that
certain Purchase and Sale Agreement dated as of April __, 2013 (the “Agreement”) for the real
property known and numbered as 33 Marrett Road, Lexington, Massachusetts (the “Property”);
WHEREAS, the Agreement calls for the deposit of One Thousand Dollars ($1,000) of the
purchase price (the “Escrow Sum
”) to be placed in escrow;
NOW THEREFORE, in exchange for the mutual promises contained herein, and for
other good and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereto agree to escrow the Escrow Sum as follows:
1.Buyer, Seller and the Escrow Agent agree to comply with the terms of the Agreement and
this Escrow Agreement related to the Escrow Sum for the purposes hereof.
2.The Escrow Sum shall be retained by the Escrow Agent, and it shall be held in accordance
with the terms set forth below:
a)In the event of a dispute relating to the Escrow Sum, the Escrow Agent shall retain all or
any portion of the Escrow Sum pending the receipt of written instructions agreed to and
signed by Seller and Buyer or receipt of a court order directing the distribution of the
Escrow Sum after all appeals therefrom have been taken or appeals periods relating
thereto have expired. In the alternative, the Escrow Agent may resign at any time by
transferring the Escrow Sum to a successor escrow agent reasonably acceptable to Seller
and Buyer, which successor agrees in writing to act as escrow agent.
b)Buyer and Seller jointly and severally agree to indemnify and hold the Escrow Agent
harmless for any and all costs and expenses, including reasonable attorney’s fees,
incurred in connection with any dispute concerning the Escrow Sum.
c)The duties and responsibilities of the Escrow Agent shall be limited to those expressly set
forth herein and in the Agreement, and the Escrow Agent shall not be subject to, nor
obligated to recognize, any other agreement between, or direction or instructions of, any
or all of the parties hereto.
d)The Escrow Agent, in its sole discretion, may institute legal proceedings of any kind,
including, but not limited to, a legal proceeding in any court of competent jurisdiction, to
determine the obligations of the parties hereunder and to deposit the Escrow Sum in such
court; and upon such deposit and institution of legal proceedings, the duties of the
Escrow Agent shall be fully terminated and the Escrow Agent shall be fully discharged
from all such duties. The Escrow Agent shall not be required to institute or defend any
administrative, arbitral, judicial or other action or legal process involving any matter
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B-1
referred to herein which in any manner affects it or its duties or liabilities hereunder
unless and until it has received full indemnity as it shall in its sole discretion require
against any and all claims, liabilities, judgments, attorneys' fees and other costs and
expenses of any and every kind in relation thereto.
e)In taking any action hereunder, the Escrow Agent shall be protected and may rely upon
any notice, paper or document or signature believed by it to be genuine or upon any
evidence deemed by it to be sufficient. In no event shall the Escrow Agent be liable for
any act performed or omitted to be performed by it hereunder in the absence of gross
negligence or willful misconduct, and in no event shall it be liable or responsible for any
failure of any banking institution in which the Escrow Sum is deposited to pay such
Escrow Sum at the Escrow Agent's direction.
f)The Escrow Agent shall not be under a duty to give the property held hereunder a greater
degree of care than the Escrow Agent gives its own similar property.
g)The rights and immunities of the Escrow Agent hereunder shall apply equally to its
partners, of counsel, associates, employees, affiliates and agents.
h)Seller and Buyer agree that Anderson & Kreiger LLP's status as Escrow Agent shall not
affect its ability to act as Buyer’s counsel in the event a dispute arises regarding the
Escrow Sum, or any other dispute under this Escrow Agreement or with respect to the
sale of the Property, and Seller and Buyer hereby waive any current or future conflict of
interest which may result from the same.
i)This Agreement sets forth exclusively the duties of Escrow Agent with respect to any and
all matters pertinent hereto and no implied duties or obligations shall be read into this
Escrow Agreement against Escrow Agent.
3.The Escrow Sum will be deposited in Escrow Agent’s non-interest-bearing IOLTA account.
4. Any capitalized terms that are not specifically defined herein shall have the meanings
attributed to them in the Agreement.
\[The remainder of this page has been intentionally left blank.\]
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B-2
This document is executed under seal as of this __ day of April 2013.
BUYER: SELLER:
LEXINGTONTRUSTEES OF THE SUPREME
BOARD OF SELECTMEN COUNCIL OF THE ANCIENT
ACCEPTED SCOTTISH RIGHT
OF FREE MASONRY
_______________________
Deborah N. Mauger, Chair By:__________________________
Name:
_______________________Its: President
Peter C.J. Kelley
_______________________
Norman P. Cohen
_______________________
Hank Mantz
_______________________
Joseph Pato
ANDERSON & KREIGER LLP, as Escrow Agent
__________________________
By: ______________________
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B-3
EXHIBIT C
PLAN OF EASEMENT
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C-1
EXHIBIT D
FORM OF EASEMENT
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D-1
EXHIBIT E
RIGHT OF FIRST OFFER
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E-1
EXHIBIT F
DISCLOSURE OF BENEFICIAL INTEREST FORM
F-1
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EXHIBIT G
HISTORIC PRESERVATION RETRICTION PLAN
G-1
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EXHIBIT D
RECORD AND RETURN TO:
Stephanie B. Dubanowitz, Esq.
Anderson & Kreiger LLP
One Canal Park, Suite 200
Cambridge, MA 02141
~ Recording Information Area ~
COMMON DRIVEWAY AND PARKING LOT EASEMENT
WHEREAS, the Trustees of the Supreme Council of the Ancient Accepted Scottish Rite
of Free Masonry, a Massachusetts charitable corporation (“Owner”), own the land and
improvements located along Marrett Road in Lexington, Massachusetts shown as \[“10 Acre
Lot”\] (“Lot 1”) and the land and improvements shown as \[“Pine Grove to be Retained by
Seller”\] (the “Remaining Land”) on that certain plan entitled \[“________________”\] dated
_______________ (the “Plan”), attached hereto as Exhibit 1 (for Owner’s title to Lot 1 and the
Remaining Land, see that certain deed recorded with the Middlesex South District Registry of
Deeds in Book 11498, Page 14);
WHEREAS, Owner is conveying Lot 1 to the Town of Lexington (the “Town”), having
rrett Road, Lexington, MA
an address of 1625 Massachusetts Avenue, Lexington Massachusetts 02420, by that certain deed
being recorded simultaneously herewith; and
WHEREAS, Owner is retaining ownership of the Remaining Land and wishes to grant a
perpetual, non-exclusive easement appurtenant to Lot 1 for the right and easement for ingress,
egress and parking purposes to pass over the area shown as “Shared Parking and Driveway
Access” on the Plan as said right is described herein (the “Easement Area”).
NOW THEREFORE, in consideration of the sum of One Dollar ($1.00) and other good
Property address: 33 Ma
and valuableconsideration, the receipt of which is hereby acknowledged, Owner and the Town
agree as follows:
1.Owner hereby grants a perpetual, non-exclusive right and easement appurtenant to Lot 1
to pass and repass over, across and along the Easement Area for ingress, egress and parking for
Lot 1. Without limitation, the Easement Area may be used for all purposes for which driveways,
private ways, public roads and parking areas are customarily used in the Town of Lexington.
{A0187209.4 } 1
2.The Town shall have the right, in the Town’s sole discretion, to permit members of the
public to use the Easement Area for ingress, egress and parking for Lot 1.
3.Owner shall be responsible, at Owner’s sole cost and expense, for the construction of the
parking lot shown on the Plan as “Pine Grove Parking Area” on the Remaining Land, and upon
construction of the Pine Grove Parking Area, the Easement Area shall automatically include the
Pine Grove Parking Area. Said parking area shall be constructed by no later than six (6) months
from the date hereof and shall be constructed substantially in the configuration shown on the
plan attached hereto as Exhibit 2
.
4.Owner and the Town agree that the cost of ordinary repair and maintenance of the
Easement Area shall be divided equally between the Owner and the Town. Owner shall be
responsible for the repair of any specific and unique damage to the Easement Area, including
without limitation all improvements therein, that Owner and Owner’s agents, contractors,
employees and invitees cause directly, and the Town shall be responsible for the repair of any
specific and unique damage to the Easement Area, including without limitation all improvements
therein, that the Town and the Town’s agents, contractors, employees and invitees cause directly.
5.Owner and the Town acknowledge and agree that no buildings or structures of any kind
shall be constructed on, over or across the Easement Area, and the Easement Area shall not be
blocked at any time other than in the event of an emergency or as required for the completion of
maintenance and repairs.
6.Owner shall be responsible for the removal and disposal of fallen limbs and trees as well
as the clearing and removal of all brush and foliage that might obstruct the sight of vehicles
using the Easement Area. \[Location issues to be discussed.\]
7.Owner shall be responsible for the clearing of snow from the Easement Area in a timely
fashion as needed to maintain safe, continuous year-round access to the Easement Area and
Lot 1, and the cost of said snow clearing for the Easement Area shall be paid by Owner. The
Owner shall not be responsible for snow removal on Lot 1.
8.Notwithstanding anything set forth herein to the contrary, each party shall use diligent
and good faith efforts to minimize any interference with the shared use of the Easement Area as
set forth herein that results from the exercise of said party’s rights hereunder or the performance
of said party’s obligations under this Common Driveway and Parking Lot Easement.
9.If the Owner fails to fulfill any of its responsibilities hereunder in a timely manner, the
Town may, in the Town’s sole discretion, perform the same, and the cost thereof shall promptly
be reimbursed by Owner.
10.The parties hereby agree that in the event an event or gathering is scheduled to occur on
Lot 1 or the Remaining Land that may conflict or materially interfere with the use by the other
party hereto of the Easement Area as set forth herein, the user party shall notify the other party in
writing no later than thirty (30) days prior to said event and Owner and the Town shall use
diligent and good faith efforts to agree upon a mutually acceptable plan to minimize any such
conflict or interference. \[Dispute resolution process to be discussed.\]
{A0187209.4 } 2
11.To the extent that the same is reasonably commercially obtainable in the marketplace, the
Town agrees to maintain the insurance described in this section in conjunction with its use of the
Easement: (a) general liability insurance in the amount of $1,000,000 per occurrence and
$2,000,000 in the aggregate with a per location general aggregate limit endorsement;
(b) automobile liability insurance for all owned, leased, non-owned and hired vehicles in the
amount of $1,000,000 each accident, combined single limit for bodily injury and property
damage and including automobile contractual liability coverage; (c) workers’ compensation
insurance in the amount of $100,000 each accident, bodily injury by accident; $100,000 each
employee, bodily injury by diseases; $500,000 policy limit, bodily injury by disease; and
(d) umbrella liability insurance in the amount of $10,000,000 in the aggregate. The insurance
coverage required by this section shall be by standard policies written on an occurrence basis,
obtained from an insurance company that is an admitted carrier in Massachusetts and has an
A.M. Best rating of “A-, VIII” or better. Each of the general liability and automobile liability
insurance coverage policies identified above shall name the Owner as an additional insured.All
of the foregoing policies shall contain a provision stating that the applicable coverage shall not
be cancelled, reduced or otherwise materially altered without at least thirty (30) days prior
written notice to the Owner. The Town waives subrogation rights against the Owner for all
losses covered by the insurance identified above with the exception of the umbrella liability
insurance coverage.\[Insurance provision under review by Town and its insurance
consultants.\]
12.Any notice hereunder shall be in writing and shall be deemed to have been properly given
when miled, if mailed by registered or certified mail, return receipt requested, all charges a
prepaid, or when hand delivered or sent by a recognized overnight courier service, addressed as
follows:
If to Owner: Trustees of the Supreme Council of the
Ancient Accepted Scottish Rite of Free Masonry
33 Marrett Road
Lexington, MA 02421
If to Town: Town Manager
Town of Lexington
1625 Massachusetts Avenue
Lexington, MA 02420
13.Owner represents and warrants that there are no mortgages or encumbrances of record or
otherwise on the Easement Area or the Pine Grove Parking Area that may negatively impact this
Easement. Owner shall be deemed to automatically reaffirm this representation and warranty
with respect to the Pine Grove Area at the time of the completion of the parking area in that
location as required under Section 3 hereof.
14.The terms of this Easement shall run with the Remaining Land and Lot 1 and shall
benefit and be binding upon the successor owners thereof.
\[Signatures follow on next page.\]
{A0187209.4 } 3
WITNESS our hands and seal this _______ day of November, 2013.
OWNER
TRUSTEES OF THE SUPREME COUNCIL OF THE
ANCIENT ACCEPTED SCOTTISH RIGHT OF FREE
MASONRY
________________________________
_____________________, Trustee
Hereunto duly authorized
TOWN
TOWN OF LEXINGTON
By:_______________________
Carl Valente, Town Manager
Hereunto Duly Authorized
\[Acknowledgements appear on following page.\]
{A0187209.4 } 4
COMMONWEALTH OF MASSACHUSETTS
__________________________, ss. November ____, 2013
On this ____ day of November, 2013, before me, the undersigned notary public, personally
appeared ________________, proved to me through satisfactory evidence of identification,
which was ___________________, to be the person who signed the preceding document and
acknowledged to me that he signed it voluntarily for its stated purpose as Trustee of the Trustees
of the Supreme Council of the Ancient Accepted Scottish Rite of Free Masonry, and
acknowledged the foregoing instrument to be his free act and deed as Trustee of said trust.
____________________________________
Notary Public:
My Commission Expires:
COMMONWEALTH OF MASSACHUSETTS
Miseddlex County November ____, 2013
On this ____ day of November, 2013, before me, the undersigned notary public, personally
appeared Carl Valente, Town Manager for the Town of Lexington, proved to me through
satisfactory evidence of identification, which was _______________________ to be the person
who signed the preceding document and acknowledged to me that he signed it voluntarily for its
stated purpose.
____________________________________
Notary Public:
My Commission Expires:
{A0187209.4 } 5
EXHIBIT 1 TO EASEMENT
Plan
{A0187209.4 }
EXHIBIT 2 TO EASEMENT
Pine Grove Parking Area Plan
{A0187209.4 }
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INVENTORY FORM CONTINUATION SHEET
Commmity:
Form No:
Mfyjohupo
516
MASSACE-IUSETTS HISTORICAL
CCHII SS I ON
Office of the Secretary, Boston
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INVENTORY FORM CONTINUATION SHEET
Community:
Form No:
Mfyjohupo 516
MASSACHUSETTS HISTORICAL CC 1I SS I ON
Office of the Secretary, Boston
Property Name: 33 Nbssfuu!Spbe
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Staple to Inventory form at bottom
Town
INVENTORY FORM CONTINUATION SHEET Property Address
LEXINGTON 33 MARRETT RD
MASSACHUSETTS HISTORICAL COMMISSION Area(s) Form No.
MASSACHUSETTS ARCHIVES BUILDING
610
MORRISSEY BOULEVARD
220
MASSACHUSETTS 02125
BOSTON,
HISTORICAL SIGNIFICANCE:
The brick building now used as a Masonic headquarters was constructed in 1905 for Richard Gleason Tower (1857-
1921), youngest child of William Augustus Tower (1824-1904). On August 19, 1905, the
Lexington Minute-Man
reported that "Mr. Richard Tower's new house, on Middle street, not far from his old home, is commenced, inasmuch as
Mr. Bartlett Harrington will build the cellar and John Daley, with men, is making the necessary excavation". Tower's
previous home was destroyed by fire. A few months later, Richard Tower married Henrietta Lockwood
(
Minute-Man,
Oct. 7, 1905).
The Richard Tower House was designed by Boston architects Fehmer and Page (Carl Fehmer and Samuel F. Page). Carl
Fehmer was born in Germany in 1835. He immigrated to the U.S. with his mother and siblings in 1852 and attended
public school in Boston. He received training in the office of prominent Boston architect George Snell for eight years
before beginning an architectural practice some time during the 1860s. He performed all of the architectural work for the
Massachusetts General Hospital for 25 years and later designed a number of buildings for the McLean Hospital as well as
a number of Back Bay houses and lesser numbers of residences in Brookline, Easton, and Weston. Fehmer was a charter
member of the Boston Society of Architects. The firm of Fehmer and Page formed about 1890. Fehmer died in Boston
in 1917.
BIBLIOGRAPHY:
Lexington Minute-Man, Aug. 19, 1905; Oct. 7, 1905.
Massachusetts Historical Commission, MACRIS database.
www.bosarchitecture.com
http://en.wikipedia.org
Supplement prepared by:
Lisa Mausolf
Feb. 2009
EXHIBIT E
AGREEMENT OF RIGHT OF FIRST OFFER
This Agreement of Right of First Offer (this “Agreement
”) is made as of this __ day of
November, 2013 by and among the Trustees of the Supreme Council of the Ancient Accepted
Scottish Rite of Free Masonry, a Massachusetts charitable corporation, having an address of 33
Marrett Road, Lexington, Massachusetts 02420 (the “Seller”), and the Town of Lexington, by
and through its Board of Selectmen, having an address of 1625 Massachusetts Avenue,
Lexington, Massachusetts 02420 (the “Buyer”).
WHEREAS, Seller and Buyer have entered into a Purchase and Sale Agreement dated
April ___, 2013 (the “Purchase and Sale Agreement”) for the Buyer’s purchase of approximately
10 acres of land, consisting of portions of the properties identified on the Town of Lexington
Assessor’s Map 31 as Lots 63A and 63B (the “Property”) and shown as __________ on that
certain ANR Plan dated _________ and recorded with the Middlesex County Registry of Deeds
as Plan _______ of 2013 (the “Plan”); and
WHEREAS, pursuant to the Purchase and Sale Agreement Seller has agreed to grant to
Buyer a right of first offer to purchase that certain parcel of land containing approximately .5
acres shown as “Commander’s House Parcel” on the Plan (the “Commander’s House Parcel”).
NOW THEREFORE, for good and valuable consideration, the receipt and sufficiency of
which is hereby acknowledged, the parties agree as follows:
Property: 33 Marrett Road, Lexington, MA 02420
1.Prohibition on Transfer. Seller hereby agrees that, for the Term (as hereinafter
defined) of this Agreement, it will not sell or otherwise convey all or any portion of the
Commander’s House Parcel without first complying with the terms of this Agreement.
2.Right of First Offer.
(a)If, at any time or times during the Term, Seller shall desire to solicit an
offer for the sale of all or any portion of the Commander’s House Parcel or Seller receives an
unsolicited offer for the sale of all or any portion of the Commander’s House Parcel, Seller shall
deliver to Buyer written notification (the “Solicitation Notice”) of the same. Buyer shall have an
exclusive period of one hundred twenty (120) days after Buyer’s receipt of the Solicitation
Notice (the “ROFO Period”) to negotiate with Seller for the purchase of the subject portion of
the Commander’s House Parcel, and Seller shall be obligated to negotiate in good faith with
Buyer during the ROFO Period in an attempt to reach a mutually satisfactory agreement with
respect to the purchase of the subject portion of the Commander’s House Parcel. If Buyer and
{A0187219.4 } 1
Seller are able to agree upon mutually satisfactory terms for the transfer of the subject portion of
the Commander’s House Parcel, Buyer and Seller shall enter into a purchase and sale agreement
for Buyer’s purchase of the subject portion of the Commander’s House Parcel no later than the
end of the ROFO Period.
(b)If Buyer and Seller are unable to agree upon a mutually satisfactory
purchase price for the transfer of the subject portion of the Commander’s House Parcel, Seller
shall be free, for a period of six (6) months after the expiration of the ROFO Period, to sell the
subject portion of the Commander’s House Parcel to a third party,failing which Seller shall be
required to comply once again with the terms of this Section 2 before selling all or any portion of
the Commander’s House Parcel.
3.Term. The term of this Agreement (the “Term”) shall be the period commencing on the date
hereof and expiring on _________ ___, ____ (the “Expiration Date”).
4.Notice. Any notice hereunder, including without limitation, the Solicitation Notice and Buyer’s
written response thereto, if any, shall be in writing and shall be deemed to have been properly given when mailed, if
mailed by registered or certified mail, return receipt requested, all charges prepaid, or when hand delivered or sent
by a recognized overnight courier service, or sent via facsimile or email with proof of transmission, addressed as
follows:
If to Seller: Trustees of the Supreme Council of the Ancient Accepted Scottish
Rite of Free Masonry
33 Marrett Road
Lexington, MA 02421
Attn: James Dill
Fax: 781.863.1833
with a copy to: ___________________
___________________
___________________
Fax:___________________
Email: ___________________
If to Buyer: Town Manager
Town of Lexington
1625 Massachusetts Avenue
Lexington, MA 02420
Fax: 781.861.2921
with a copy to: ___________________
___________________
___________________
Fax:___________________
Email: ___________________
{A0187219.4 } 2
Notices shall be deemed received: (a) upon three (3) days following mailing with the U.S.
Postal Service if mailed in the manner aforesaid; or (b) upon receipt or refusal to receive by the
addressee if delivered by hand, overnight delivery service, or facsimile (with proof of
transmission). Either party may notify the other by such notice of a new address, in which case
such new address shall be employed for all subsequent mailings.
5.Miscellaneous.
(a)This Agreement constitutes the entire agreement between the parties
hereto with respect to the subject matter hereof, and any other agreements, whether oral or
written, heretofore entered into between the parties hereto with respect to the sale of all or any
portion of the Commander’s House Parcel are hereby cancelled and of no further force or effect.
(b)This Agreement shall be interpreted, construed, applied and enforced in
accordance with the laws of the Commonwealth of Massachusetts.
(c)No waiver of or consent to any breach of any condition, covenant or
agreement contained in this Agreement shall be constructed to be a waiver of any subsequent
breach thereof or of this Agreement.
(d)If any provision of this Agreement shall be held or deemed to be, or shall
in fact be, invalid, inoperative or unenforceable because of the conflict of such provision with
any constitution or statute or rule or public policy or for any other reason, such circumstance
shall not have the effect of rendering any other provision or provisions herein contained invalid,
inoperative or unenforceable, but this Agreement shall be reformed and construed as if such
invalid, inoperative or unenforceable provision had never been contained herein and such
provision reformed so that it would be valid, operative and enforceable to the maximum extent
permitted.
(e)The parties agree that the covenants and restrictions in this Agreement
shall be binding on and shall inure to the benefit of the parties and their respective successors in
title.
(f)This Agreement may only be amended by a written instrument, clearly
designated to be an amendment, signed by all parties.
(g)Time is of the essence of this Agreement.
\[The remainder of this page has been intentionally left blank.\]
{A0187219.4 } 3
This document is executed under seal as of the date first set forth above.
BUYER: SELLER:
TOWN OF LEXINGTON TRUSTEES OF THE SUPREME
BOARD OF SELECTMEN COUNCIL OF THE ANCIENT
ACCEPTED SCOTTISH RIGHT OF
_________________________FREE MASONRY
Deborah N. Mauger, Chairman
________________________________
______________________________________, Trustee
Peter C. J. Kelley Hereunto duly authorized
_________________________
Norman P. Cohen
__________________________
Hank Manz
__________________________
Joseph Pato
COMMONWEALTH OF MASSACHUSETTS
COUNTY OF __________________________
On this __ day of November, 2013, before me, the undersigned notary public, personally
appeared __________________________________________________________________
Members of the Town of Lexington Board of Selectmen, proved to me through satisfactory
evidence of identification, which was _____________________________________, to be the
persons whose names are signed on the preceding document and acknowledged to me that they
signed it voluntarily for its stated purpose.
______________________________
Official signature and seal of notary
Notary Public:
{A0187219.4 } 4
COMMONWEALTH OF MASSACHUSETTS
COUNTY OF __________________________
On this __ day of November, 2013, before me, the undersigned notary public, personally
appeared __________________, Trustee of the Trustees of the Supreme Council of the Ancient
Accepted Scottish Rite of Free Masonry, proved to me through satisfactory evidence of
identification, which was ___________________, to be the person whose names is signed on the
preceding document and acknowledged to me that he/she signed it voluntarily for its stated
purpose.
______________________________
Official signature and seal of notary
Notary Public:
{A0187219.4 } 5