HomeMy WebLinkAbout2016-09-21 BOS Packet - Released SELECTMEN'S MEETING
Wednesday, September 21, 2016
Selectmen Meeting Room
6:30 PM
AGENDA
PUBLIC COMMENTS
Public comments are allowed for up to 10 minutes at the beginning of each meeting. Each speaker is
limited to 3 minutes for comment. Members of the Board will neither comment nor respond, other than to
ask questions of clarification. Speakers are encouraged to notify the Selectmen's Office at 781-698-4580
if they wish to speak during public comment to assist the Chairman in managing meeting times.
SELECTMAN CONCERNS AND LIAISON REPORTS
TOWN MANAGER REPORT
ITEMS FOR INDIVIDUAL CONSIDERATION
1. Purchase and Sale Agreement-171-173 Bedford Street(10 min.) 6:35 p.m.
2. Special Town Meeting-Article Positions (15 min.) 6:45 p.m.
3. Selectmen Committee Appointments & Resignations (5 min.) 7:00 p.m.
CONSENT AGENDA
1. Approve One-Day Liquor License- Cary Memorial Library Foundation
2. Approve Minutes and Executive Session Minutes
ADJOURN
1. Approximate Adjourn Time 7:05 p.m.
The next meeting of the Board of Selectmen will be is scheduled for Monday, September 26, 2016
at 7:00 p.m. in the Selectmen's Meeting Room, 1625 Massachusetts Avenue.
Hearing Assistance Device.s Available on Repast �� �� �
All agenda time and the order of items are approximate and
subject to change. Recorded by LexMedia
AGENDA ITEM SUMMARY
LEXINGTON BOARD OF SELECTMEN MEETING
AGENDA ITEM TITLE:
Purchase and Sale Agreement-171-173 Bedford Street (10 min.)
PRESENTER: ITEM
NUMBER:
Carl F. Valente, Town Manager
I.1
SUMMARY:
Review and comment on draft Purchase and Sale Agreement for 171-173 Bedford Street. The Town's Letter of
Interest with the property owner calls for the Purchase and Sale Agreement to be signed no more than five
days after the approval by Town Meeting.
Also included is the draft lease, that will allow Liberty Mutual to remain in the building until the end of the year,
while their new office space is completed.
SUGGESTED MOTION:
Move to authorize the Town Manager to make changes to the draft Purchase and Sale Agreement for 171-173
Bedford Street as may be recommended by Town Counsel, and to sign said final Agreement on behalf of the
Board of Selectmen.
Move to authorize the Town Manager to make changes to the draft Lease Agreement for 171-173 Bedford
Street as may be recommended by Town Counsel, and to sign said final Agreement on behalf of the Board of
Selectmen.
FOLLOW-UP:
Town Manager and Town Counsel
DATE AND APPROXIMATE TIME ON AGENDA:
9/21/2016 6:35 p.m.
ATTACHMENTS:
Description Type
D Drafl llurchaso sin d SdoAgnxmxmit Backup Matorinl
D Drafty mso Backup Matorinl
PURCHASE AND SALE AGREEMENT
between
LIBERTY MUTUAL INSURANCE COMPANY, as Seller
and
THE TOWN OF LEXINGTON, acting by and through its Board of Selectmen, as Buyer
171-173 BEDFORD STREET
LEXINGTON, MASSACHUSETTS
Dated as of September _, 2016
(A0392592.1}
Table of Contents
ARTICLE 1. Agreement to Sell.............................................................................................1
ARTICLE 2. Intentionally Omitted. .....................................................................................1
ARTICLE 3. Purchase Price and Payment. .........................................................................1
ARTICLE 4. Conveyance of Title..........................................................................................2
ARTICLE5. Closing...............................................................................................................3
ARTICLE 6. Intentionally Omitted. .....................................................................................5
ARTICLE 7. AS IS,WHERE IS............................................................................................5
ARTICLE 8. Conditions to Closing; Extensions to Satisfy.................................................6
ARTICLE9. Default...............................................................................................................7
ARTICLE 10. Damage or Destruction; Condemnation........................................................8
ARTICLE 11. Representations and Warranties of Seller.....................................................9
ARTICLE 12. Seller's Covenants Prior to Closing..............................................................11
ARTICLE 13. Apportionment of Taxes and Other Charges..............................................12
ARTICLE 14. Closing Costs..................................................................................................12
ARTICLE 15. Broker.............................................................................................................13
ARTICLE 16. Representations and Warranties of Buyer..................................................13
ARTICLE 17. Further Assurances........................................................................................14
ARTICLE 18. Duties and Responsibilities of Escrow Agent. [MMOG to review] ..........14
ARTICLE19. Notices.............................................................................................................15
ARTICLE 20. Miscellaneous..................................................................................................16
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Exhibits
EXHIBIT A Description of Real Property
EXHIBIT B Form of Seller Lease
EXHIBIT C Form of Deed
EXHIBIT D Title Insurance Commitment
EXHIBIT E Form of Certificate of Non-Foreign Status
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PURCHASE AND SALE AGREEMENT
THIS AGREEMENT (this "Agreement") made as of this day of September,
2016 (the "Effective Date"), by and between LIBERTY MUTUAL INSURANCE
COMPANY, a Massachusetts stock insurance company, having an address of 175 Berkeley
Street, Boston, Massachusetts 02116 (hereinafter referred to as "Seller"), and THE TOWN OF
LEXINGTON, acting by and through its Board of Selectmen, having an address of
1625 Massachusetts Avenue, Lexington, Massachusetts 02420 (hereinafter referred to as
"Buyer").
RECITALS
A. Seller is the owner of the following real property, which, taken together, is herein
collectively called the "Property" or the"Real Property":
That certain parcel of land located in the Town of Lexington, Massachusetts, as more
particularly described in EXHIBIT A attached hereto and incorporated herein by
reference (collectively the "Land") and all buildings (the "Buildings") and other
improvements located on the Land (the "Improvements"), together with all easements,
rights and privileges appurtenant thereto, commonly known as 171-173 Bedford Street.
B. Seller is prepared to sell, transfer and convey the Property to Buyer, subject to the
"Seller Lease" (as hereinafter defined), and Buyer is prepared to purchase, pay for, and acquire
the Property from Seller, subject to the Seller Lease, all for the "Purchase Price" (as hereinafter
defined) and on the other terms and conditions hereinafter set forth.
AGREEMENT
In consideration of the mutual covenants and agreements contained herein and other good
and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, and
intending to be legally bound hereby, the parties hereto agree as follows:
ARTICLE 1. Agreement to Sell.
Subject to the terms and conditions hereinafter set forth, Seller agrees to sell and Buyer
agrees to buy, the Property. As a condition of the sale of the Property, Seller, as tenant, and
Buyer, as landlord, have agreed to enter into a lease (the "Seller Lease") whereby Seller would
lease all of the leasable space located in the Buildings (approximately 164,111 rentable square
feet), in the form attached hereto as EXHIBIT B.
ARTICLE 2. Intentionally Omitted.
ARTICLE 3. Purchase Price and Payment.
The total purchase price (the "Purchase Price") for the Property is Four Million Three
Hundred Thousand Dollars ($4,300,000.00). Subject to the terms and conditions of this
Agreement, the Purchase Price shall be paid as follows:
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3.1 Within three (3) business days after the execution and delivery of this Agreement,
a cash deposit by wire transfer of immediately available funds in the amount of Two Hundred
Fifteen Thousand Dollars ($215,000.00) (the "Deposit") shall be paid to Marsh, Moriarty, Ontell
& Golder (the "Escrow Agent"), having an address at 18 Tremont Street, Suite 900, Boston,
MA 02108, and the Deposit shall be held and paid in accordance with the terms of this
Agreement. At the Closing, the Deposit shall be paid to Seller and applied in reduction of the
Purchase Price payable at Closing. The Deposit will be placed by the Escrow Agent and held in
a non-interest bearing account. [NTD- Confirm deposit payment with Town.]
3.2 The Escrow Agent's duties and responsibilities are governed by the terms of
ARTICLE 18 hereof.
3.3 The balance of the Purchase Price, in the amount of Four Million Eighty-Five
Thousand Dollars ($4,085,000.00), subject to adjustments and prorations provided for in this
Agreement, shall be paid by Buyer to the Escrow Agent at the Closing (as defined herein) by
wire transfer of immediately available federal funds and the Escrow Agent shall transfer such
funds, together with the Deposit, by wire transfer of immediately available funds to such
account(s) as Seller shall designate in writing at least 3 business days prior to Closing.
ARTICLE 4. Conveyance of Title.
4.1 The Property shall be conveyed by a good and sufficient Quitclaim Deed (the
"Deed") in substantially the form of EXHIBIT C attached hereto and incorporated herein by
reference, running to Buyer. The Deed shall convey good and clear record marketable fee simple
title to the Property, free from all liens and encumbrances from or on the Property except for the
following matters (the "Permitted Exceptions"):
4.1.1 the lien of all real estate taxes and assessments not yet due and payable as
of the date of Closing;
4.1.2 existing building and zoning laws and ordinances; and
4.1.3 the title encumbrances listed on Schedule B, Section 11 of the title
insurance commitment (the "Title Insurance Commitment") annexed
hereto as EXHIBIT D and made a part hereof (the "Permitted
Encumbrances").
4.2 Pre-Closing "Gap" Title Defects. Buyer may, at or prior to Closing, notify Seller
in writing (a "Gap Title Notice") of any objections to title (the "Gap Title Objections") first
raised by the Title Company between (a) the effective date of the Title Insurance Commitment
and (b) the consummation of the Closing hereunder. With respect to any Gap Title Objections
set forth in the Gap Title Notice, within five (5) Business Days of Seller's receipt of a Gap Title
Notice, Seller shall notify Buyer in writing (the "Seller's Response") as to which Gap Title
Objections, if any, Seller shall attempt to cure, provided that Seller shall be required to use
reasonable efforts to cure Gap Title Objections that in the aggregate do not require the
expenditure of more than Twenty-Five Thousand and 00/100 Dollars ($25,000.00) ("Seller's
Cure Amount"), with no such limit on voluntary monetary liens or municipal liens or other
voluntary encumbrances by Seller in breach of Seller's obligations under this Agreement
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(collectively, "Voluntary Liens"). If Seller elects in Seller's Response not to attempt to use
reasonable efforts to cure any Gap Title Objection that Seller is not required to attempt to cure
under this paragraph, then within two (2) Business Days of Buyer's receipt of Seller's Response,
Buyer shall (i) elect to accept the conveyance of the Property, specifically including any matter
objected to by Buyer that Seller is not required under this paragraph to cure, without reduction of
the Purchase Price (in which case such Gap Title Objection shall be deemed a permitted title
exception under this Agreement), or (ii) terminate this Agreement by sending written notice
thereof to Seller, and upon delivery of such notice of termination this Agreement shall terminate
in which case the Deposit shall be returned to Buyer and neither party hereto shall have any
further rights, obligations or liabilities hereunder except to the extent that any right, obligation or
liability set forth herein expressly survives termination of this Agreement. If Seller elects or is
required to attempt to use reasonable efforts to cure any Gap Title Objection under this
paragraph, Seller shall have until the Closing Date to use reasonable efforts to attempt to remove,
satisfy or cure the same, and, having used such efforts for this purpose, if Seller is unable to cure
any Gap Title Objection, the Seller may extend the Closing Date for up to thirty (30) days. If
Seller notifies Buyer that, having attempted to use reasonable efforts to cure any Title Objection,
Seller is unable to effect a cure thereof by the extended Closing Date, or Seller elects not to cure
one or more Title Objections because the cost to cure all Gap Title Objections (other than
Voluntary Liens) exceeds Seller's Cure Amount, Buyer shall, within five (5) Business Days after
such notice has been given, notify Seller in writing whether Buyer shall elect to accept the
conveyance under clause (i) above or to terminate this Agreement under clause (ii) above.
ARTICLE 5. Closing.
5.1 Unless extended pursuant to the terms of this Agreement, the closing of the
transactions contemplated hereunder (the "Closing") shall take place on [October 27, 2016]
("Closing Date")through an escrow closing facilitated by the Escrow Agent.
5.2 At the Closing, Seller shall deliver the following documents:
5.2.1 The Deed, duly executed by Seller and acknowledged as required to be in
recordable form;
5.2.2 Four(4) copies of the Seller Lease, duly executed by Seller;
5.2.3 Originals or copies in Seller's possession or control of all warranties,
guaranties and operating manuals, if any, with respect to the Property,
including without limitation, any from any contractors, subcontractors,
suppliers or materialmen in connection with any construction, repair or
alteration of the Improvements or systems;
5.2.4 Originals or copies of all plans, permits, governmental approvals, land use,
environmental, traffic and building permits in Seller's possession or
control and originals of all certificates of occupancy, licenses, variances
and the like relating to the Property which are in the possession of the
Seller;
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5.2.5 A certification of non-foreign status in the form of EXHIBIT E attached
hereto and incorporated herein by reference, duly executed by Seller;
5.2.6 Evidence satisfactory to Buyer's title insurance company (the "Title
Company")that all necessary approvals and/or consents by Seller and any
constituent person of Seller otherwise required under Seller's
organizational documents, have been delivered and such other evidence
satisfactory to the Title Company of Seller's good standing and authority
and the authority of the signatory on behalf of Seller to convey the
Property pursuant to this Agreement;
5.2.7 Affidavits and indemnities reasonably sufficient for the Title Company to
delete any exceptions for parties in possession and mechanics' or
materialmen's liens from the owner's title insurance policy (the "Title
Policy");
5.2.8 A certificate restating as of the Closing Date all of Seller's representations
and warranties contained herein or, to the extent that such representations
and warranties are no longer true and correct, a certificate setting forth all
exclusions and exceptions to such representations and warranties then
known to Seller, which certificate shall be subject to the same
qualifications and limitations set forth in Section 11.2 hereof, duly
executed by Seller;
5.2.9 Four (4) duplicate originals of a closing statement setting forth the
Purchase Price and the closing adjustments and prorations in form and
substance satisfactory to Buyer and Seller (the "Closing Statement"),
duly executed by Seller;
5.2.10 An original 1099 B Certification, duly executed by Seller; and
5.2.11 Keys to all locks at the Property.
5.3 At the Closing, Buyer shall deliver, or cause to be delivered, the following:
5.3.1 The Purchase Price as adjusted in accordance with the terms hereof,
5.3.2 Four(4) copies of the Seller Lease, duly executed by Buyer;
5.3.3 Four (4) duplicate originals of the Closing Statement, duly executed by
Buyer;
5.3.4 A certificate restating as of the Closing Date all of Buyer's representations
and warranties contained herein or, to the extent that such representations
and warranties are no longer true and correct, a certificate setting forth all
exclusions and exceptions to such representations and warranties then
known to Buyer, which certificate shall be subject to the same
qualifications and limitations set forth in Section 16.1 hereof, duly
executed by Buyer; and
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5.3.5 A certified copy of the Town Meeting vote authorizing the transactions
contemplated herein.
ARTICLE 6. Intentionally Omitted.
ARTICLE 7. As Is, Where Is.
7.1 The Property is being acquired by Buyer in an "AS IS", "WHERE IS" condition,
"WITH ALL DEFECTS" and "WITH ALL FAULTS" in the same condition as of the Effective
Date, reasonable use and wear and tear excepted, and in compliance with any instrument in
Sction 4.1. Buyer acknowledges that it will be acquiring the Property on the basis of its own
investigations and that it has been given an opportunity to inspect fully the Property and
investigate all matters relevant thereto. Except as expressly set forth in this Agreement or in any
documents delivered by Seller to Buyer at Closing, no representations or warranties, whether
express, implied or statutory, have been made or are made and no responsibility has been or is
assumed by Seller or by any officer, person, firm, agent or representative acting or purporting to
act on behalf of the Seller as to condition or repair of the Property or the value, expense of
operation, or income potential thereof, the reliability of any information furnished to Buyer or as
to any other fact or condition which has or might affect the Property or the condition, repair,
value, expense of operation or income potential of the Property or any portion thereof. Buyer
hereby expressly releases the "Seller Group" (as defined herein) from any and all claims, losses,
proceedings, damages, causes of action, liability, costs or expenses (including attorneys' fees)
arising from, in connection with or caused by (a) Buyer's reliance upon any of the information or
statements by the Seller, or on the representations or assertions contained therein (the "Property
Information"), or (b) the inaccuracy, incompleteness or unreliability of any of the Property
Information made available to Buyer. [NTD- Discuss with Town whether it is receiving any
personal property.]
7.2 Buyer hereby waives, releases and forever discharges Seller, any affiliate of Seller
and any manager, member, partner, shareholder, officer, director, employee, agent or person
acting on behalf of Seller or any affiliate of Seller (the "Seller Group") of and from any and all
claims, actions, causes of action, demands, rights, damages, liabilities and costs whatsoever,
direct or indirect, known or unknown, which Buyer now has or which may arise in the future,
against the Seller Group related in any way to the condition of the Property as of Closing, except
for (x) all liabilities or obligations relating to or arising from environmental matters and
"Hazardous Materials" (as defined herein) located at, on, in, or under the Property or migrating
from the Property, regardless of whether such Hazardous Materials are located on, under or in
the Property prior to or after the date hereof, (y) claims resulting from the breach of any
representation or warranty or indemnification obligation made by Seller in this Agreement or in
any documents delivered by Seller to Buyer at Closing, in each case subject to the limitation of
time set forth in Section 11.2 hereof, and (z) fraud. Buyer hereby agrees not to assert, and
hereby releases Seller from, any claim for contribution, cost, recovery or otherwise against Seller
Group relating directly or indirectly to the physical condition of the Property as of Closing. .
The term "Hazardous Materials" shall include any substance, chemical, compound, product,
solid, gas, liquid, waste, byproduct, pollutant, contaminant or material which is hazardous, toxic,
ignitable, corrosive, carcinogenic or otherwise dangerous to human, plant or animal life or the
environment or which are defined, determined or identified as such in any Environmental Laws
or which are regulated or subject to clean-up authority under any Environmental Laws,
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including, but not limited to materials defined as (A) "hazardous waste" under the Federal
Resource Conservation and Recovery Act; (B) "hazardous substances" under the Federal
Comprehensive Environmental Response, Compensation and Liability Act, (C) "pollutants"
under the Federal Clean Water Act; (D) "toxic substances" under the Toxic Substances Control
Act; and (E) hazardous materials under Massachusetts law.
ARTICLE 8. Conditions to Closing, Extensions to Satisfy.
8.1 Buyer's Conditions. Without limiting any of the other conditions to Buyer's
obligations to close set forth in this Agreement, the obligations of Buyer under this Agreement
are subject to the satisfaction at the time of Closing of each of the following conditions (any one
of which may be waived in whole or in part by Buyer at or prior to Closing):
8.1.1 All of the representations and warranties by Seller set forth in this
Agreement or any Exhibit attached hereto shall be true and correct in all
material respects when made and shall be true and correct in all material
respects as of the Closing;
8.1.2 Seller shall have performed, observed, and complied in all material
respects with all covenants and agreements required by this Agreement to
be performed by Seller at or prior to Closing;
8.1.3 No proceeding shall have been commenced against Seller under the
United States Bankruptcy Code or any state law for relief of debtors;
8.1.4 The physical condition (including the environmental condition) of the
Property shall be substantially the same upon the Closing as of the
Effective Date, except for reasonable wear and tear, damage or destruction
by casualty (as described herein); and
8.1.5 Seller shall have: (a) executed and delivered to Buyer, or the applicable
party, all of the documents required to be delivered by Seller at the
Closing as set forth herein and (b) taken all other action required of Seller
at the Closing in accordance with the terms and conditions of this
Agreement.
8.2 Extension of Closing Date. If on or before the Closing Date any condition to
Buyer's obligation to close set forth in Section 8.1 has not been satisfied, Seller shall use diligent
and good faith efforts to attempt to satisfy any such unsatisfied condition, and if Seller so elects,
the Closing Date shall be extended by written notice from Seller to Buyer for a period of up to
thirty (30) days as specified in said notice.
8.3 Seller's Conditions. Without limiting any of the other conditions to Seller's
obligations to close set forth in this Agreement, the obligations of Seller under this Agreement
are subject to the satisfaction at the time of Closing of each of the following conditions (any one
of which may be waived in whole or in part by Seller at or prior to Closing):
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8.3.1 All of the representations and warranties by Buyer set forth in this
Agreement or any Exhibit attached hereto shall be true and correct in all
material respects when made and shall be true and correct in all material
respects as of the Closing; and
8.3.2 Buyer shall have performed, observed, and complied in all material
respects with all covenants and agreements required by this Agreement to
be performed by Buyer at or prior to Closing.
8.4 Failure of Condition. If any condition to either party's obligation to proceed with
the Closing is not satisfied at Closing (as the same may be extended), other than as a result of a
default by the other party (the remedies for which are provided in ARTICLE 9 below), such party
may either (a) terminate this Agreement by delivering written notice to the other party on or
before the Closing Date, whereupon the Deposit shall be immediately returned to such party (and
this shall be such party's sole and exclusive remedy at law and in equity as a result of such
termination), or (b) elect to close, notwithstanding the non-satisfaction of such condition, in
which event such party shall be deemed to have waived any such condition.
ARTICLE 9. Default.
9.1 Seller Default. In the event that Seller fails to fulfill its obligation hereunder to
close this transaction and transfer the Property to Buyer in accordance with the terms and
conditions set forth in this Agreement,
9.1.1 Buyer's remedies shall be limited to the right to: (a) terminate this
Agreement by delivery of written notice to Seller and Escrow Agent, and
Escrow Agent or Seller, as applicable, shall return the Deposit to Buyer,
whereupon this Agreement shall terminate and neither party shall have any
further rights or obligations with respect to each other or this Agreement,
except those that are expressly provided in this Agreement to survive the
termination hereof, or (b) continue this Agreement and seek specific
performance of Seller's obligations hereunder, and if Buyer prevails
thereunder, Seller shall reimburse Buyer for all reasonable legal fees, court
costs, and all other reasonable costs of such action.
9.1.2 If Seller willfully defaults under this Agreement by conveying the
Property to a third-party so that specific performance is not available to
Buyer, Seller shall also reimburse Buyer for all of Buyer's reasonable out-
of-pocket costs and expenses, including, without limitation, fees for
Buyer's attorneys, engineers and consultants in connection with (i) the
preparation and negotiation of this Agreement and (ii) due diligence
review of the Property (including, without limitation, the cost of obtaining
and reviewing any title commitments, surveys and environmental and
engineering reports and tests), and this, in addition to the right to receive a
refund of the Deposit, shall be Buyer's sole and exclusive remdy at law
and in equity in the event of any such willful default.
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9.2 Buyer Default. In the event of a default by Buyer of any of its representations,
warranties, covenants or obligations hereunder, it would be extremely impracticable and difficult
to estimate the damage and harm which Seller would suffer, and because a reasonable estimate of
the total net detriment that Seller would suffer in the event of Buyer's failure to duly complete
the acquisition hereunder is the amount of the Deposit, Seller shall be entitled to receive and
retain the Deposit as and for Seller's sole and exclusive remedy for damages arising from
Buyer's failure to complete the acquisition in accordance with the terms hereof, and Seller shall
have no further recourse or remedy at law or in equity for any breach by Buyer hereunder;
provided, however that, notwithstanding anything herein to the contrary, in addition to Seller's
ability to retain the Deposit, Seller shall also have the right to enforce Buyer's obligations under
Section 9.4,ARTICLE 15 and Section 20.15 hereof.
9.3 No Indirect Damages. Subject to the provisions of Section 9.1, under no
circumstances shall Seller or Buyer have the right to any indirect, consequential or punitive
damages, "overhead" or similar charges, or any damages relating to lost profits or lost
opportunities with respect to any such default by the other party hereto, it being understood that
Seller and Buyer hereby waive their right to collect all other damages and all of their rights and
remedies on account of a default hereunder by the other party hereto, and agree that the remedies
described in this ARTICLE 9 shall be their sole and exclusive remedies in the event of any such
default.
9.4 Return of Property Information. Notwithstanding anything contained in this
Agreement to the contrary, if this Agreement is terminated for any reason whatsoever, then Buyer
shall promptly deliver to Seller all Property Information provided to Buyer by Seller, including
copies thereof in any form whatsoever (including electronic form) and if requested by Seller,
along with any and all test results and studies performed by or on behalf of Buyer pursuant to
this Agreement, excluding any confidential or proprietary information or financial modeling or
attorney work product. The obligations of the Buyer under this paragraph shall survive any
termination of this Agreement for a period of three months.
ARTICLE 10. Damage or Destruction, Condemnation.
10.1 The risk of loss, damage or destruction to the Property by fire or other casualty or
the taking of all or part of the Property by condemnation or eminent domain or by an agreement
in lieu thereof until the Closing is assumed by Seller.
10.2 In the event of partial damage or destruction of the Property of a type which can,
under the circumstances, reasonably be expected (based on the estimate of a licensed architect or
engineer selected by Seller)to be restored or repaired at a cost of$250,000.00 or less, then Buyer
shall (unless such damage has been repaired by Seller in a good and workmanlike manner prior
to Closing), accept title to the Property in its destroyed or damaged condition. Buyer shall pay
the full Purchase Price at Closing without reduction, and Seller shall pay over or assign to Buyer
all rights to any proceeds of insurance payable with respect to such destruction or damage (less
amounts reasonably expended by Seller in repairing the damage or collecting proceeds prior to
the Closing Date) and Buyer shall have a credit against the Purchase Price in the amount of any
deductible; provided, however, that if such insurance proceeds are less than the full cost of such
restoration and repairs, Buyer may elect to reduce the Purchase Price by the amount of such
shortfall.
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10.3 In the event that the Property shall have been damaged or destroyed, the cost of
repair or restoration of which would reasonably be expected (based on the estimate of a licensed
architect or engineer selected by Seller) to exceed the sum of$250,000.00, then at Buyer's sole
election, Buyer may (a) terminate this Agreement by delivering written notice to Seller, in which
case the Escrow Agent shall return the Deposit to Buyer and this Agreement shall terminate and
all other obligations of the parties hereto shall cease except those set forth in Section 9.4,
ARTICLE 15, and Section 20.15 hereof, and this Agreement shall be void and without recourse
to the parties hereto or (b) elect to close on the Property in which event Seller shall pay over or
assign to Buyer all rights to any proceeds of insurance payable with respect to such destruction
or damage (less amounts reasonably expended by Seller in repairing the damage) and Buyer shall
have a credit against the Purchase Price in the amount of any deductible-; provided, however,
that if such insurance proceeds are less than the full cost of such restoration and repairs, Buyer
may elect to reduce the Purchase Price by the amount of such shortfall.
10.4 If prior to the Closing Date, all or a material portion of the Property is taken by
condemnation or eminent domain or any proceeding to acquire, take or condemn all or a material
portion of the Property is threatened or commenced, Buyer may either terminate this Agreement
(in which event Buyer shall be entitled to a return of the Deposit and all other obligations of the
parties hereto shall cease except those that by the express terms of this Agreement shall survive
the termination of this Agreement) or purchase the Property in accordance with the terms hereof,
except that the Purchase Price shall be subject to an equitable adjustment, or at Buyer's election,
Seller shall credit the amount of said payments against the Purchase Price at the Closing.
10.5 Seller shall promptly notify Buyer in writing of any material damage or
destruction to the Property or any notice received by it or information or awareness acquired by
it regarding the threatening of or commencement of condemnation or similar proceedings.
ARTICLE 11. Representations and Warranties of Seller.
11.1 In order to induce Buyer to enter into this Agreement and to consummate the
purchase of the Property, Seller hereby represents and warrants to Buyer as of the date of this
Agreement as follows:
11.1.1 Authority. Seller is, and on the Closing Date shall be, a mutual insurance
company duly and validly organized and existing and governed by the
laws of the Commonwealth of Massachusetts. This Agreement and all
documents executed by Seller that are to be delivered to Buyer at the
Closing are, or at the time of Closing will be, duly authorized, executed
and delivered by Seller, and all consents required under Seller's
organizational documents or by law will have been obtained. This
Agreement and such documents are, or at the Closing will be, legal, valid,
and binding obligations of Seller enforceable in accordance with their
terms, and do not, and at the time of Closing will not, violate any
provisions of any agreement or judicial order to which Seller is a party or
to which Seller or the Property is subject.
11.1.2 Condemnation. To Seller's knowledge, Seller has not received written
notice of any condemnation, zoning, environmental or other land use
tA0392592.1} -9-
regulation proceedings that would detrimentally affect the use, occupancy
and operation of the Property or the value of the Property.
11.1.3 Leases. There are no leases or occupancy agreements affecting the
Property (other than the Seller Lease).
11.1.4 Violations of Law. To Seller's knowledge, Seller has not received any
written notice from any governmental authority having jurisdiction that
the Property is in violation of any law, ordinance, rule or regulation
applicable to the Property which has not been cured. To Seller's
knowledge, Seller has not received any written notice from any
governmental authority having jurisdiction of any failure by Seller to
obtain any permit, license or other approval (collectively, the "Property
Licenses") which is necessary in order to own, use, or operate the
Property for its current use which has not been cured, or any intended
revocation or modification of any such Property Licenses which would
have a material adverse effect on the Property.
11.1.5 Litigation. Seller has not been threatened with or received written notice
of any legal action, suit or proceeding against the Property before or by
any federal or state court, commission, regulatory body, or administrative
agency, domestic or foreign, which would, if determined adversely,
materially and adversely affect the use or the value of the Property.
11.1.6 Underground Fuel Storage Tanks. To Seller's knowledge, there are no
underground fuel storage tanks on the Property.
11.1.7 Section 1445. Seller is not a "foreign person" as defined by the Internal
Revenue Code (the "Code"), Section 1445, Seller's Taxpayer or Employer
I.D. Number is 91-0833287, and Seller will execute and deliver to Buyer
at Closing an affidavit or certification in compliance with Code Section
1445.
11.1.8 Patriot Act/Executive Order 13224. Seller is not in violation of any legal
requirements, now or hereafter in effect, relating to money laundering,
anti-terrorism, trade embargoes and economic sanctions, including,
without limitation, Executive Order 13224 (as defined below) and the
Patriot Act (as defined below). Seller (i) is not (a) a Blocked Person (as
defined below) or (b) owned, in whole or in part, directly or indirectly, by
any Blocked Person; and (ii) does not (a) conduct any business or engage
in any transaction or dealing with a Blocked Person or (b) deal in, or
otherwise engage in, any transaction or dealing relating to any property, or
interests in property, blocked pursuant to Executive Order 13224.
As used herein, (i) "Blocked Person" is defined as any individuals or
entities which (a) are owned or controlled by, or acting on behalf of, the
governments of countries currently listed under section 60) of the Export
Administration Act as supporting international terrorism, or (b) are owned
tA0392592.1} -10-
or controlled by, are acting on behalf of, or are associated with
international terrorism, as indicated by their listing on the Treasury
Department's Specially Designated Nationals and Blocked Persons, as
updated from time to time; (ii) "Executive Order 13224" is defined as
Executive Order Number 13224, `Blocking Property Transactions with
Persons who Commit, Threaten to Commit, or Support Terrorism," 66
Fed. Reg. 49079 (Sept. 23, 2001); and (iii) "Patriot Act" is defined as the
Uniting and Strengthening America by Providing Appropriate Tools
Required to Intercept and Obstruct Terrorism Act of 2001, Pub. L. No.
107-56, 115 Stat. 272.
11.2 The representations and warranties of the Seller contained herein shall survive the
Closing and delivery of the Deed for a period of one (1) year after Closing, except 11.1.6 which
will survive for 3 years.
11.3 If prior to Closing, Buyer obtains actual knowledge that any of the representations
or warranties made herein by Seller are inaccurate, untrue or incorrect in any material respect,
then Buyer shall elect either to (a) waive such misrepresentations or breaches of representations
and warranties and consummate the transaction contemplated hereby without any reduction of or
credit against the Purchase Price, in which case Seller's representations and warranties shall be
deemed to be revised to reflect such information or (b) terminate this Agreement by notice to
Seller given within five (5) business days after Buyer's discovery of such matters, in which event
the Deposit shall be paid to Buyer and thereupon all obligations of the parties under this
Agreement shall terminate (other than those obligations which, by the express terms of this
Agreement, survive the termination of this Agreement, which shall remain in effect), unless such
matter is reasonably susceptible of being remedied and Seller has notified Buyer within such five
(5) day period that Seller is willing to remedy such matter (in which case such remedy shall be a
condition to Buyer's obligations hereunder), and if such matter arises during the thirty (30) day
period immediately prior to the Closing hereunder, then Seller may extend the Closing for up to
thirty (30) days by written notice to Buyer.
11.4 For the purposes of this Agreement, the term "Seller's Knowledge" or words of
similar import, shall refer only to the actual knowledge of Kristen Felton, and shall not be
construed to refer to the knowledge of any other manager, member, partner, beneficial owner,
officer, employee or agent of Seller, nor shall such term impose any duty to investigate the
matters to which such knowledge, or absence thereof, pertain. There shall be no personal
liability on the part of Kristen Felton arising out of any representations or warranties made herein
or otherwise. If, after the date hereof and prior to the Closing, either party obtains knowledge
that any of the representations or warranties made herein by the other are untrue, inaccurate or
incorrect in any material respect, such party shall promptly give the other party written notice
thereof of obtaining such knowledge and the party so notified shall have the opportunity to cure
such matter prior to the Closing.
ARTICLE 12. Seller's Covenants Prior to Closing. Between the date hereof and the
Closing, Seller shall operate the Property or cause the Property to be operated in the ordinary
course of business and consistent with past procedures heretofore followed by it in connection
with such operation, including, without limitation, maintaining Seller's existing insurance
coverage with respect to the Property, provided, however, that Seller shall not be obligated to
tA0392592.1} -11-
make any capital improvements, capital repairs, or capital replacements prior to Closing except
as necessary to ensure that the Property is in compliance with Section 8.1.3 herein.
12.1 Leases. After the date hereof, Seller shall not enter into any lease or occupancy
agreement with respect to the Property, other than the Seller Lease.
12.2 Operating Contracts. Seller shall not, without the prior written consent of Buyer,
which may be withheld in Buyer's sole and absolute discretion, enter into any contract which
could bind Buyer or the Property after the Closing.
ARTICLE 13. Apportionment of Taxes and Other Charges.
13.1 Prorations. All normal and customarily proratable items, including without
limitation, real estate and personal property taxes and special assessments, shall be prorated as of
the Closing Date in accordance with the ordinary custom and practice in Lexington,
Massachusetts, Seller being charged and credited or debited, as the case may be, for all of such
payments attributable to the period up to the Closing Date, regardless of when such payments are
actually due and payable, and Buyer being charged and credited for all of the same relating to the
period on and after the Closing Date. If the amount of any such item is not known at the time of
the delivery of the Deed, such item shall be apportioned on the basis of the comparable period of
the prior year with a reapportionment within ninety (90) days of the Closing Date or as soon
thereafter as the amount of the item is actually determined.
13.2 Utilities. In accordance with the Seller Lease, all utility accounts shall remain in
the name of Seller, and will be paid by Seller during the term of the Seller Lease.
13.3 Survival. The provisions of this ARTICLE 13 shall survive the Closing for a
period of one (1) year, and in the event of any error in performing the prorations contemplated by
this Agreement or if information becomes available subsequent to the Closing indicating that the
prorations performed at Closing were not accurate the parties hereto shall be obligated promptly
to re-prorate the closing adjustments to correct such errors and to reflect such new information.
A detailed statement shall be prepared at the Closing setting forth the manner of computation of
the aforesaid pro ration adjustments.
ARTICLE 14. Closing Costs.
Except as hereinafter specifically provided, Seller and Buyer shall allocate all closing
costs between them in accordance with standard practice in Lexington, Massachusetts. Each of
Seller and Buyer shall be responsible for preparing such documents as it is obligated to deliver
pursuant to ARTICLE 5 hereof and for its own legal expenses. Seller and Buyer agree to
allocate closing costs as follows:
14.1 Buyer's Costs. Buyer will pay the following costs:
14.1.1 The fees and disbursements of its counsel;
14.1.2 One-half(1/2) of any escrow fees payable to the Escrow Agent;
tA0392592.1} -12-
14.1.3 The cost of any title investigations and title insurance policies issued in
connection with this transaction;
14.1.4 Land survey costs incurred by Buyer;
14.1.5 Any recording fees for recording the Deed; and
14.1.6 Any other expense(s) incurred by Buyer or its representative(s) in
inspecting or evaluating the Property or closing this transaction.
14.2 Seller's Costs. Seller will pay:
14.2.1 The fees and disbursements of Seller's counsel;
14.2.2 One-half(1/2) of any escrow fees payable to the Escrow Agent;
14.2.3 Any real estate transfer, stamp or documentary taxes, as well as, any
recording fees necessary to remove any applicable liens or mortgages; and
14.2.4 The Broker's fee, to the extent any such fee is payable pursuant to Seller's
separate agreement with the Broker.
ARTICLE 15. Broker.
15.1 Each party represents hereby to the other that it dealt with no broker in the
consummation of this Agreement other than CB Richard Ellis - N.E. Partners, L.P. (the
"Broker"), whose commission shall be paid by Seller pursuant to a separate agreement between
Seller and Broker), and each party shall indemnify and save the other harmless from and against
any claim, loss, cost, damage, liabilities and expense (including, without limitation, reasonable
counsel fees and court costs) arising from the breach of such representation by the indemnifying
party to the extent permitted by law.
15.2 The provisions of this ARTICLE 15 shall survive Closing or the termination of
this Agreement.
ARTICLE 16. Representations and Warranties of Buyer.
Buyer hereby represents and warrants to Seller as of the date hereof and as of the Closing Date as
follows:
16.1 This Agreement and all documents executed by Buyer that are to be delivered to
Seller at the Closing are, or at the time of Closing will be, duly authorized, executed and
delivered by Buyer, and all consents required by law will have been obtained. All necessary
third party consents and approvals to the transactions contemplated hereby have been obtained.
This Agreement and such documents are, or at the Closing will be, legal, valid, and binding
obligations of Buyer enforceable in accordance with their terms, and do not, and, at the time of
Closing will not, violate any provisions of any agreement or judicial order to which Buyer is a
party or to which it is subject.
tA0392592.1} -13-
16.2 There are no proceedings pending or, to Buyer's knowledge, threatened against it
in any court or before any governmental authority or any tribunal which, if adversely determined,
would have a material adverse effect on its ability to purchase the Property or to carry out its
obligations under this Agreement.
16.3 The representations and warranties of Buyer contained herein shall survive the
Closing for a period of one (1) year after Closing.
ARTICLE 17. Further Assurances.
17.1 Seller and Buyer shall cooperate with one another at reasonable times and on
reasonable conditions and shall execute and deliver such instruments and documents as may be
necessary in order fully to carry out the intent and purposes of the transactions contemplated
hereby. Except for such instruments and documents as the parties were originally obligated to
deliver by the terms of this Agreement, such cooperation shall be without additional cost or
liability.
17.2 The provisions of this Article 17 shall survive the Closing for a period of 6
months.
ARTICLE 18. Duties and Responsibilities of Escrow Agent. [Title Company to review]
[Escrow Agent shall deliver the Deposit to Seller or Buyer promptly after receiving a
joint written notice from Seller and Buyer directing the disbursement of the same, such
disbursement to be made in accordance with such direction. If Escrow Agent receives written
notice from Buyer or Seller that the party giving such notice is entitled to the Deposit, which
notice shall describe with reasonable specificity the reasons for such entitlement, then Escrow
Agent shall (i) promptly give notice to the other party of Escrow Agent's receipt of such notice
and enclosing a copy of such notice and (ii) subject to the provisions of the following paragraph
which shall apply if a conflict arises, on the fifth (5th) business day after the effective date of the
notice referred to in clause (i) above, deliver the Deposit to the party claiming the right to receive
it.
In the event that Escrow Agent shall be uncertain as to its duties or actions hereunder or
shall receive instructions or a notice from Buyer or Seller which are in conflict with instructions
or a notice from the other party or which, in the reasonable opinion of Escrow Agent, are in
conflict with any of the provisions of this Agreement, it shall be entitled to take any of the
following courses of action:
18.1 Hold the Deposit as provided in this Agreement and decline to take any further
action until Escrow Agent receives a joint written direction from Buyer and Seller or any order of
a court of competent jurisdiction directing the disbursement of the Deposit, in which case
Escrow Agent shall then disburse the Deposit in accordance with such direction;
18.2 In the event of litigation between Buyer and Seller, Escrow Agent may deliver the
Deposit to the clerk of any court in which such litigation is pending; or
tA0392592.1} -14-
18.3 Deliver the Deposit to a court of competent jurisdiction and therein commence an
action for interpleader, the cost thereof to Escrow Agent to be borne by whichever of Buyer or
Seller does not prevail in the litigation.
Escrow Agent shall not be liable for any action taken or omitted in good faith and
believed by it to be authorized or within the rights or powers conferred upon it by this
Agreement and it may rely, and shall be protected in acting or refraining from acting in reliance
upon an opinion of counsel and upon any directions, instructions, notice, certificate, instrument,
request, paper or other documents believed by it to be genuine and to have been made, sent,
signed or presented by the proper party or parties. In no event shall Escrow Agent's liability
hereunder exceed the aggregate amount of the Deposit. Escrow Agent shall be under no
obligation to take any legal action in connection with the Escrow or this Agreement or to appear
in, prosecute or defend any action or legal proceedings which would or might, in its sole opinion,
involve it in cost, expense, loss or liability unless, in advance, and as often as reasonably
required by it, Escrow Agent shall be furnished with such security and indemnity as it finds
reasonably satisfactory against all such cost, expense, loss or liability. Notwithstanding any
other provision of this Agreement, Buyer and Seller jointly indemnify and hold harmless Escrow
Agent against any loss, liability or expense incurred without bad faith on its part and arising out
of or in connection with its services under the terms of this Agreement, including the cost and
expense of defending itself against any claim of liability.
Escrow Agent shall not be bound by any modification of this Agreement affecting
Escrow Agent's duties hereunder unless the same is in writing and signed by Buyer, Seller and
Escrow Agent. From time to time on or after the date hereof, Buyer and Seller shall deliver or
cause to be delivered to Escrow Agent such further documents and instruments that fall due, or
cause to be done such further acts as Escrow Agent may reasonably request (it being understood
that the Escrow Agent shall have no obligation to make any such request) to carry out more
effectively the provisions and purposes of this Agreement, to evidence compliance with this
Agreement or to assure itself that it is protected in acting hereunder.
Escrow Agent shall serve hereunder without fee for its services as escrow agent, but shall
be entitled to reimbursement for expenses incurred hereunder, which expenses shall be paid and
borne equally by Buyer and Seller, unless such expenses are associated with litigation between
Buyer and Seller, in which event they shall be borne by the party that does not prevail in the
litigation. Escrow Agent agrees that it will not seek reimbursement for the services of its
employees or partners, but only for its actual and reasonably incurred out of pocket expenses.
Escrow Agent executes this Agreement solely for the purpose of consent to, and agreeing to be
bound by the provisions of this ARTICLE 18, and to the extent applicable to Escrow Agent,
ARTICLE 3.]
ARTICLE 19. Notices.
Any notice, consent or approval required or permitted to be given under this Agreement
shall be in writing and shall be deemed to have been given upon (i) hand delivery, (ii) one
business day after being deposited with Federal Express or another reliable overnight courier
service for next business day delivery, (iii) facsmile, or (iv) three business days after being
deposited in the United States certified mail, postage prepaid, return receipt required, and
addressed as follows:
tA0392592.1} -15-
To Seller: Liberty Mutual Insurance Company
175 Berkeley Street
Corporate Real Estate
Mail Stop MO 1 G
Boston, Massachusetts 02116
With a copy by email to: Lease.Admin@libertymutual.com
And with a copy to: Reid and Riege, P.C.
One Financial Plaza
Hartford, CT 06103
Attention: Joseph K. Fortier, Esq.
To Buyer: Town of Lexington
1625 Massachusetts Avenue
Lexington, MA 02420
Attention: Carl Valente, Town Manager
With a copy to:
until 10/1/2016 Anderson & Kreiger LLP
One Canal Park, Suite 200
Cambridge, MA 02141
Attention: Stephanie B. Dubanowitz, Esq
Fax: 617-621-6651
after 10/1/2016 Anderson & Kreiger LLP
50 Milk Street
Suite 2100
Boston, MA 02109
Attention: Stephanie B. Dubanowitz, Esq.
Fax: 617-621-6651
or such other address as either party may from time to time specify in writing to the other. Any
notice, consent, approval or extension of time hereunder may be given on behalf of a party by its
attorney in accordance with the terms of this ARTICLE 19.
ARTICLE 20. Miscellaneous.
20.1 Assignment by Buyer, Successors and Assigns. Without the prior written consent
of Seller, which consent may be withheld by Seller in Seller's sole discretion, Buyer shall not,
directly or indirectly, assign this Agreement or any of its rights hereunder. Notwithstanding the
foregoing, Buyer shall have the right 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 days before the closing.
20.2 Entire Agreement, Amendment. The parties understand and agree that their entire
agreement is contained herein and that no warranties, guarantees, statements, or representations
shall be valid or binding on a party unless set forth in this Agreement. Except for that certain
tA0392592.1} -16-
Site Access Agreement between the parties, it is further understood and agreed that all prior
understandings and agreements heretofore had between the parties are merged in this Agreement
which alone fully and completely expresses their agreement and that the same is entered into
after full investigation, neither party relying on any statement or representation not embodied in
this Agreement. This Agreement may be changed, modified, altered or terminated only by a
written agreement signed by Buyer and Seller and, with respect to the provisions of ARTICLE 18
only, the Escrow Agent.
20.3 Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the Commonwealth of Massachusetts without regard to principles of
choice of law or conflicts of law. For purposes of any suit, action or proceeding involving this
Agreement, Buyer and Seller hereby expressly submit to the jurisdiction of all federal and state
courts sitting in the Commonwealth of Massachusetts and consent that any order, process, notice
of motion or application to or by any such court or a judge thereof may be served within or
without such court's jurisdiction by registered mail or by personal service, provided that a
reasonable time for appearance is allowed, and the parties agree that such courts shall have
exclusive jurisdiction over any such suit, action or proceeding commenced by either or both of
said parties. In furtherance of such agreement, the parties agree upon the request of the other to
discontinue (or agree to the discontinuance of) any such suit, action or proceeding pending in any
other jurisdiction. Each party hereby irrevocably waives any objection that it may now or
hereafter have to the laying of venue of any suit, action or proceeding arising out of or relating to
this Agreement brought in any federal or state court sitting in the Commonwealth of
Massachusetts, and hereby further irrevocably waives any claim that such suit, action or
proceeding brought in any such court has been brought in an inconvenient form.
20.4 Intentionally omitted.
20.5 No Waiver. No delay in exercising any right or remedy shall constitute a waiver
thereof, and no waiver by Seller or Buyer of the breach of any covenant of this Agreement shall
be construed as a waiver of any preceding or succeeding breach of the same or any other
covenant or condition of this Agreement.
20.6 Time of the Essence, Time Periods. Time is of the essence of this Agreement.
Any reference in this Agreement to the time for the performance of obligations or elapsed time
shall mean consecutive calendar or business days, months, or years, as applicable. As used in
this Agreement, the term "business day" shall mean any day other than a Saturday, Sunday,
recognized federal holiday or a recognized state holiday in the Commonwealth of Massachusetts.
If the last date for performance by either party under this Agreement occurs on a day which is not
a business day, then the last date for such performance shall be extended to the next occurring
business day.
20.7 Severability. If any term, provision, covenant, or condition of this Agreement, or
the application thereof to any person or any circumstance, is held to be unenforceable, invalid or
illegal (in whole or in part) for any reason (in any relevant jurisdiction), the remaining terms,
provisions, covenants, and conditions of this Agreement, modified by the deletion of the
unenforceable, invalid or illegal portion (in any relevant jurisdiction), will continue in full force
and effect, and such unenforceability, invalidity, or illegality will not otherwise affect the
enforceability, validity or legality of the remaining terms, provisions, covenants and conditions
tA0392592.1} -17-
of this Agreement so long as this Agreement as so modified continues to express, without
material change, the original intentions of the parties as to the subject matter hereof and the
deletion of such portion of this Agreement will not substantially impair the respective
expectations of the parties or the practical realization of the benefits that would otherwise be
enforced upon the parties. The parties will endeavor in good faith negotiations to replace the
prohibited or unenforceable provision with a valid provision, the economic effect of which
comes as close as possible to that of the prohibited or unenforceable provision.
20.8 Counterparts. This Agreement may be executed in any number of counterparts,
each of which shall be deemed to be an original, but any number of which, taken together, shall
be deemed to constitute one and the same instrument.
20.9 Construction of Agreement. This Agreement shall not be construed more strictly
against one party than against the other merely by virtue of the fact that it may have been
prepared primarily by counsel for one of the parties, it being recognized that both Buyer and
Seller have contributed substantially and materially to the preparation of this Agreement.
20.10 No Personal Liability. Buyer acknowledges and agrees that no general or limited
partner, officer, director, equity owner, employee, agent, member, manager or representative of
Seller (or any partner, member or manager of such a partner, member or manager) shall ever
have any personal liability under this Agreement. Seller acknowledges and agrees that no
member, employee, agent or representative of Buyer shall ever have any personal liability under
this Agreement.
20.11 Merger. Except as otherwise specifically provided herein or in any closing
document, the acceptance of the deed by the recordation thereof shall be deemed to be a full and
complete performance and discharge of every agreement and obligation of the Seller herein
contained.
20.12 No Third Party Beneficiaries. Nothing in this Agreement is intended, nor will be
deemed, to confer rights or remedies upon any person or legal entity not a party to this
Agreement.
20.13 Captions. The captions in this Agreement are inserted only for the purpose of
convenient reference and in no way define, limit or prescribe the scope or intent of this
Agreement or any part hereof.
20.14 Recording. It is agreed hereby that neither this Agreement nor any notice or
memorandum hereof shall be recorded.
20.15 Publicity and ConfidentialitX. Seller and Buyer each agree that, prior to the
Closing, the terms of the transaction contemplated by this Agreement, the existence of this
Agreement, any information discovered by Buyer during its due diligence and all information
made available by one party to the other shall be maintained in strict confidence and no
disclosure of such information will be made by Seller or Buyer, whether or not the transaction
contemplated by this Agreement shall close, except to such attorneys, accountants, investment
advisors, lenders and others as are reasonably required to evaluate and consummate that
transaction, provided, however that Buyer shall be entitled to release this Agreement at any time
tA0392592.1} -18-
for the purposes of Town Meeting and any required municipal approvals in connection with the
transaction contemplated herein. Nothing in this Article shall prevent Seller or Buyer from
disclosing or accessing any information otherwise deemed confidential under this Article (a) in
connection with that party's enforcement of its rights hereunder; (b) pursuant to any legal
requirement, any statutory reporting requirement or any accounting or auditing disclosure
requirement; (c) in connection with performance by either party of its obligations under this
Agreement (including, but not limited to, the delivery and recordation of instruments, notices or
other documents required hereunder); or (d) to potential investors, participants or assignees in or
of the transaction contemplated by this Agreement. The provisions of this paragraph shall
survive the Closing or the termination of this Agreement.
20.16 No Offer. The submission of this Agreement for review and execution shall not
be deemed an offer by Seller to sell the Property nor a reservation or option for the Property on
behalf of the Buyer. This Agreement shall become effective and binding only upon the execution
and delivery hereof by both the Buyer and the Seller.
20.17 IRS Real Estate Sales Reporting. Buyer, Seller and Escrow Agent hereby agree
that Escrow Agent shall act as "the person responsible for closing" the transaction which is the
subject of this Agreement pursuant to Section 6045(e) of the Code and shall prepare and file all
informational returns, including IRS Form 10995, and shall otherwise comply with the
provisions of Section 6045(e) of the Code.
(Signature page follows)
tA0392592.1} -19-
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as an
instrument under seal as of the day and date first written above.
Seller:
LIBERTY MUTUAL INSURANCE COMPANY
By:
Name:
Title:
Date: September_, 2016
Buyer:
THE TOWN OF LEXINGTON
By:
Name: Carl Valente
Title: Town Manager
Duly Authorized
Date: September_, 2016
Escrow Agent:
MARSH, MORIARTY, ONTELL& GOLDER,
P.C.
By:
Name:
Title:
Date: September_, 2016
tA0392592.1} -20-
EXHIBIT A
DESCRIPTION OF REAL PROPERTY
A certain parcel of land with the buildings situated thereon in Lexington, Middlesex
County, being shown on a Plan of Land in Lexington, Massachusetts, dated November 20, 1953,
by R.C. Dwyer, Civil Engineer and recorded with Middlesex South District Registry of Deeds as
Plan No. 744 of 1955 at Book 8457, page 516, bounded and described as follows:
NORTHERLY: By land now or formerly of Crowell Tube Company, two hundred
and forty-two and 18/100 (242.18)feet;
NORTHEASTERLY: By land now or formerly of Crowell Tube Company ninety-four
and 32/100 (94.32)feet;
NORTHERLY: (again) By land now or formerly of Crowell Tube Company one hundred
forty-eight and 94/100 (148.94)feet;
NORTHWESTERLY: By land now or formerly of the Crowell Tube Company, fifty-four
and 66/100 (54.66)feet;
NORTHERLY: (again) By land now or formerly of the Crowell Tube Company,
(again)one hundred fifty-three and 22/100 (153.22)feet;
EASTERLY: By land now or formerly of Tropeano, two hundred one and
05/100 (201.05)feet;
SOUTHERLY: By land now or formerly of Joseph H. and Carolyn H. Mealey,six
hundred eighty-one and 82/100 (681.82)feet;
WESTERLY: By Bedford Street one hundred thirty and 59/100 (130.59) feet
and forty-one and 66/100 (41.66)feet.
Containing two and 77/100 (2.77) acres, being any or all of said measurements or
contents more or less however otherwise the same may be bounded, measured or described.
Being the same premises conveyed to Liberty Mutual Insurance Company by deed from
Harry S. Sukeforth (a/k/a Harold S. Sukeforth), William A. Schromm, and George A.
McLaughlin, as trustees of the Stevens Family Trust, dated November 7, 1967 and recorded with
Middlesex South District Registry of Deeds at Book 11429 at Page 718.
tA0392592.1} Exhibit A,Page-1-
EXHIBIT B
FORM OF SELLER LEASE
(to be attached)
tA0392592.1} Exhibit B,Page-1-
1
EXHIBIT C
QUITCLAIM DEED
LIBERTY MUTUAL INSURANCE COMPANY, a Massachusetts stock insurance company
with an office at 175 Berkeley Street, Boston, Massachusetts 02116 ("Grantor"), for consideration
paid of Four Million Three Hundred Thousand Dollars ($4,300,000), grants to THE TOWN OF
LEXINGTON, acting on behalf of its Board of Selectmen, a municipal corporation having an
address of 1625 Massachusetts Avenue, Lexington, Massachusetts 02420 ("Grantee"),
with Quitclaim Covenants,
the land with the buildings thereon situated in the Town of Lexington, Middlesex County,
Massachusetts, commonly known as 171-173 Bedford Street, being bounded and described as
follows:
A certain parcel of land with the buildings situated thereon in Lexington, Middlesex County,
being shown on a Plan of Land in Lexington, Massachusetts, dated November 20, 1953, by R.C.
Dwyer, Civil Engineer and recorded with Middlesex South District Registry of Deeds as Plan No.
744 of 1955 at Book 8457, page 516, bounded and described as follows:
NORTHERLY: By land now or formerly of Crowell Tube Company, two hundred
and forty-two and 18/100 (242.18)feet;
NORTHEASTERLY: By land now or formerly of Crowell Tube Company ninety-fourand
32/100 (94.32)feet;
NORTHERLY: (again) By land now or formerly of Crowell Tube Company one
hundredforty-eight and 94/100 (148.94)feet;
NORTHWESTERLY: By land now or formerly of the Crowell Tube Company, fifty-four
and 66/100 (54.66)feet;
NORTHERLY: (again) By land now or formerly of the Crowell Tube Company, one hundred
fifty-three and 22/100 (153.22)feet;
EASTERLY: By land now or formerly of Tropeano, two hundred one and 05/100
(201.05)feet;
SOUTHERLY: By land now or formerly of Joseph H. and Carolyn H. Mealey,six
hundred eighty-one and 82/100 (681.82)feet;
WESTERLY: By Bedford Street one hundred thirty and 59/100 (130.59) feet and
forty-one and 66/100 (41.66)feet.
Being the same premises conveyed to Grantor by deed from Harry S. Sukeforth (a/k/a
Harold S. Sukeforth), William A. Schromm, and George A. McLaughlin, as trustees of the Stevens
tA0392592.1) Exhibit C,Page-1-
Family Trust, dated November 7, 1967, and recorded with Middlesex South District Registry of
Deeds at Book 11429 at Page 718.
This conveyance is not a sale of all or substantially all of the assets of Grantor within the
Commonwealth of Massachusetts.
No Massachusetts Deed Excise Stamps have been affixed hereto as the Grantee is a
municipality.
[Signatures to appear on next page.]
tA0392592.1} Exhibit C,Page-2-
IN WITNESS WHEREOF, the Grantor herein has executed this Quitclaim Deed, to be
effective as of the day of 2016.
LIBERTY MUTUAL INSURANCE COMPANY
By:
Name:
Title: [President]
By:
Name:
Title: [Treasurer]
COMMONWEALTH OF MASSACHUSETTS
COUNTY OF
On this day of 2016, before me, the undersigned notary public,
personally appeared proved to me through satisfactory
evidence of identification, which was , to be the person
whose name is signed on the preceding or attached document and acknowledged to me that
(he)(she) signed it voluntarily for its stated purpose as for LIBERTY
MUTUAL INSURANCE COMPANY, a Massachusetts stock insurance company.
Notary Public
My Commission Expires:
COMMONWEALTH OF MASSACHUSETTS
COUNTY OF
On this day of 2016, before me, the undersigned notary public,
personally appeared proved to me through satisfactory
evidence of identification, which was , to be the person
whose name is signed on the preceding or attached document and acknowledged to me that
(he)(she) signed it voluntarily for its stated purpose as for LIBERTY
MUTUAL INSURANCE COMPANY, a Massachusetts stock insurance company.
Notary Public
My Commission Expires:
tA0392592.1} Exhibit C,Page-3-
ACCEPTANCE BY TOWN OF LEXINGTON
The Town of Lexington, acting by and through its town Manager, pursuant to the vote taken
under Article [ ] of the Town Meeting held on [ ], 2016 and a vote of the Board
of Selectmen taken on [ ], 2016 attached hereto as Exhibit A, hereby
accepts this deed from Liberty Mutual Insurance Company as of this day of October, 2016.
By:
Carl Valente
Town Manager, duly authorized
COMMONWEALTH OF MASSACHUSETTS
COUNTY OF
On this day of 2016, before me, the undersigned notary public, personally
appeared Carl Valente, Town Manager, of the Town of Lexington, proved to me through
satisfactory evidence of identification, which was , to be the person whose
name is signed on the preceding document, and acknowledged to me that he signed it voluntarily
for its stated purpose as Town Manager, duly authorized, of the Town of Lexington.
Notary Public:
My Commission Expires:
tA0392592.1} Exhibit C,Page-4-
EXHIBIT D
TITLE INSURANCE COMMITMENT
CHICAGO TITLE INSURANCE COMPANY
COMMITMENT
SCHEDULE A
MMOG File No.16-51622 Effective date:
August 10,2016
at 5:00 P.M.
Prepared For: Anderson&Kreiger LLP'
Stephanie B.Dubanowitz,Esq.
Inquiries should be directed to:
Michael H.Marsh,Esq.
Marsh,Moriarty,Ontell&Golder,P.C.
18 Tremont Street,Suite 90,0
Boston,Massachusetts 02108
(617)778-5100
1. Policy to be issued:
ALTA OWNERS Policy—2006(6/17/06) Amount$4,300,000.00
Proposed Insured: The Town of Lexington,acting by and through its Board of Selectmen
2. The estate or interest in the land described or referred to in this Commitment and covered
herein is a fee simple,and title thereto is at the effective date hereof vested by virtue of a
Deed dated November 7,1967 and recorded with Middlesex South Registry of Deeds in
Book 1]429,Page 718,in:
Liberty Mutual Insurance Company(a Massachusetts corporation)
1 The land referred to in the Commitment is located at 111-173 Bedford Street,Lexington,
Commonwealth of Massachusetts,and is described in Exhibit A.
Note: Recorded documents referenced herein are recorded in Middlesex South County Registry
of Deeds,
tA0392592.1 Exhibit D,Page-1-
SCHEDULE D--Section I
'I'lic following are the requirements to be complied with:
I IDStrUr11Qnt(S)creating the estate or interest to be insured must be approved,executed and
filed for record,to wit:
a. Deed from Liberty Mutual Insurance Company to The Town of Lexington,acting by
and through its Board of Selectmen.
Authority Documents
• In the case of corporate signatories,documents must be signed by the President or
Vice President and Treasurer or Assistant Treasurer of the corporations.
Alternatively,corporate resolutions,which authorize the signatories on the
documents,must be obtained and recorded with a cleric's certificate of
incumbency.
• Obtain and record a vote of the Town Clerk attesting to a vote of the Board of
Selectmen authorizing the acceptance of a deed of the insured premises.
2. Payment of the full consideration to,or for the account of,the mortgagors.
1 Payment of all taxes,charges,assessments,levied and assessed against subject promises,
which are due and payable. Current Certificate of Municipal Liens and/or evidence of
payment of such matters must be obtained in order to modify Schedule B-Section
Item 5.
4, Satisfactory evidence should be had that improvements and/or repairs or alterations
thereto are completed;that contractor,subcontractors,labor and materialmen are all paid.
5. Receipt of Affidavit executed by the Seller for deletion or modification,as appropriate,of
Soliedule B-Section 2,Items I and 2 hereof.
6. Receipt of current as-built survey and surveyor's report form for deletion of survey
exception,which disclose no matters affecting title.
7. The actual value of the estate or interest to be insured must be disclosed to the Company,
and subject to approval by the Company,entered as the amount of the policy to be issued.
Until the amount of the policy to be issued shall be determined,and entered as aforesaid,
it is agreed that as between the Company,the applicant for this Commitment,and every
person relying on this Commitment,the Company cannot be required to approve any such
evaluation in excess of$100,0010.00 and the total liability of the Company on account of
this Commitment shall not exceed said amount.
8. Payment of premium at applicable rates and payment of Marsh,Moriarty,Otitell and
tA0392592.1 Exhibit D,Page-2-
Golder,P.C,legal fees,and other related expenses. This commitment is effective for a
period of six(6)months,only,and may only be relied upon by the person for whom it
was prepared. Any reliance upon or use of this Commitment by another person is strictly
prohibited and may give rise to a claim in favor of Marsh,Moriarty,Ontell and Golder,
P.C.for a fee.
9. The following must be obtained and filed if the proposed conveyance is a conveyance of
all or substantially all of the assets of the Liberty Mutual Insurance Company within the
Commonwealth of Massachusetts,or,if and as appropriate,a recitation in said deed that
said conveyance is not a conveyance of all or substantially all of the assets of the
corporation in the Commonwealth of Massachusetts-
( � Corporate excise tax waiver pursuant to KG.L.c.62C§52.
10. The following must be obtained and filed if the proposed conveyance is a conveyance of
all or substantially all of the assets of Liberty Mutual Insurance Company:
a. S hareliolder(s)'resolutions authorizing the conveyance.
11., Provide evidence satisfactory to the Company that Liberty Mutual Insurance Company is
in good standing in its state of incorporation and has qualified to do business in the
Commonwealth of Massachusetts.
12. Upon full disclosure to the company of the nature and scope of this transaction and its
review and approval of the closing documents,including updated Certificate of Title,the
company reserves the right to raise such other and further exceptions and requirements as
are appropriate.
Conditions
13, If the proposed Insured has or acquired actual knowledge of any defect,lien,
encumbrance,adverse claim or other matter affecting the estate or interest or mortgage
thereon covered by this Commitment other than those shown in Schedule B hereof,and
shall fail to disclose such knowledge to the Company in writing,the Company shall be
relieved from liability for any loss or damage resulting from any act of reliance hereon to
the extent the Company is prejudiced by failure to so disclose such knowledge.If the
proposed Insured shall disclose such knowledge to the Company,or if the Company
otherwise acquircsuctual knowledge of any such defect,lien,encumbrance,adverse
claim or other matter,the company at its option may amend Schedule B of this
Commitment accordingly,but such amendment shall not relieve the Company from
liability previously incurred pursuant to paragraph 3 of these Conditions.
14. Liability of the Company under this Commitment shall be only to the named proposed
Insured and such parties included under the definition of Insured in the form of policy or
policies committed for and only for actual loss incurred in reliance hereon in undertaking
in good faith(a)to comply with the requirements hereof,or(b)to eliminate exceptions
tA0392592.1 Exhibit D,Page-3-
shown in Schedule B,or(c)to acquire or create the estate or interest or mortgage thereon.
covered by this Commitment.In no event shall such liability exceed the amount stated in
Schedule A for the policy or policies committed for and such liability is subject to the
insuring provisions and Conditions and the Exclusions from Coverage of the form of
policy or policies committed for in favor of tile proposed Insured which are hereby
incorporated by reference and are made a part of this Commitment except as expressly
modified herein.
15. This Commitment is a contract to issue one or more title insurance policies and is not an
abstract of title or a report of the condition of title.Any action or actions or rights of
action that the proposed Insured may have or may bring against the Company arising out
of the status of the title to the estate or interest or the statics of the mortgage thereon
covered by this Commitment must be based on and are subject to the provisions of this
Commitment.
16. The policy to be issued contains an arbitration clause.All arbitrable matters when the
,mount of Insurance is$2,000,000 or less shall be arbitrated at the option of either the
Company or the Insured as the exclusive remedy of the parties.
SCHEDULE B--Section 2
Schedule B of the policy or policies to be issued will contain exceptions to the following matters
unless the same are disposed of to the satisfaction of the Company.
`1 Rights or claims of present tenants,lessees or parties in possession not shown by the
public record_
Any lien,or right to a lien,for services,labor or material,heretofore or hereafter
furnished,imposed by law and not shown by the public records.
Any encroachment,encumbrance,violation,variation,or adverse circumstance affecting
the Title that would be disclosed by an accurate and complete survey of the Land. The
terra"encroachment"includes encroachments of existing improvements located on the
Land unto the adjoining land,and encroachments onto the Land of existing improvements
located on adjoining land.
Defects,liens,encumbrances,adverse claims or other matters,if any,created,first
appearing in the public records or attaching subsequent to the effective date hereof but
prior to the date the proposed Insured acquires for value of record the estate or interest or
mortgage thereon covered by this Commitment.
Liens:for real estate taxes and assessments,which become due subsequent to the Date of
Policy. Note: Taxes are paid through
U:'SCMS'S1ta221CnmmitmemlT]uc
tA0392592.1} Exhibit D,Page-4-
6, Title to and rights of the public and others entitled thereto in and to those portions of the
insured premises lying within the bounds of the adjacent streets and ways.
1,.,, The exact acreage or square footage being other than as stated in the description sheet
annexed or the plan(s)therein referred to.
Sidewalk Construction Order by the Town of Lexington dated April 11, 1906 and
recorded at Book 11109,Page 283.
9. Matters as disclosed by plan entitled ..........-
("the survey").
Note: This policy omits any covenants,conditions or restrictions referred to above,if any,based
upon TZiCc,color,religion,sex,sexual orientation,familial status,marital status,disability,
handicap,national origin,ancestry,or source of income,as set forth in applicable state Or federal
laws except to the extent that said covenants,conditions or restrictions are permitted by
applicable state or federal.law,
Exceptions numbered 1 -3 are hereby omitted from the Owner's Policy,
MichaelMarsh,Esq.
Authorized Signatory
G"SV I 622%Commitment Doe
tA0392592.1 Exhibit D,Page-5-
EXHIBIT
A certain parcel of land with the buildings thereon situated in Lexington,Middlesex County,
being shown on a Plan of Land in Lexington,Massachusetts,dated November 20,1953,by R.C.
Dwyer,Civil Engineer and recorded with Middlesex South District Registry of Deeds as Plan
No.744 of 1,955 at Book 8457,Page 516,bounded and described as follows:
Northerly by land now or formerly of Crowell Tube Company,two hundred and forty-two
and 18/100(242.18)feet;
Northeasterly by Land now or formerly of Crowell Tube Company ninety-four and 32/100
(9432)feet,
Northerly
(again) by land now or formerly of the Crowell Tube Company one hundred forty-eight
and 94/100(148.94)feet;
Northwesterly by land now or formerly of the Crowell Tube Company,fifty-four and 661100
(54.66)feet;
Northerly
(again) by land now or formerly of the Crowell Tube Company,one hundred fifty-three
and 22/10 0(15 3,22)feet;
Easterly by land now or formerly of Tropeano,two hundred one and 05/100(201-05)feet;
i
Southerly by land now or formerly of Joseph H.and Carolyn H.Mealey,six hundred and
eighty-one and 82/100(681.92)feet;
Westerly by Bedford Street one hundred thirty and 591100(1 30.59)feet and forty-one and
66/100(41.66)feet.
Containing two and 77/100(2.77)acres,be any or all of said measurements or contents more or
less or however otherwise the same may be bounded,measured or described.
UWMS15I(a2V,;ojnTnjtmentJ)m
tA0392592.1 Exhibit D,Page-6-
EXHIBIT E
CERTIFICATION OF NON-FOREIGN STATUS
ENTITY TRANSFEROR
Section 1445 of the Internal Revenue Code provides that a transferee (or buyer) of a U.S.
real property interest must withhold tax if the transferor is a foreign person. For U.S. tax
purposes (including section 1445), the owner of a disregarded entity (which has legal title to a
U.S. real property interest under local law) will be the transferor of the property and not the
disregarded entity. To inform the transferee that withholding of tax is not required upon the
disposition of a U.S. real property interest by LIBERTY MUTUAL INSURANCE
COMPANY ("Transferor"), the undersigned being duly authorized hereby certifies the
following on behalf of Transferor:
1. Transferor is not a foreign corporation, foreign partnership, foreign trust, or
foreign estate (as those terms are defined in the Internal Revenue Code and Income Tax
Regulations);
2. Transferor is not a disregarded entity as defined in §1.1445-2(b)(2)(iii);
3. Transferor's U.S. employer identification number is 91-0833287; and
4. Transferor's office address is 175 Berkeley Street, Mail Stop MO1G
Boston, Massachusetts 02116.
Transferor understands that this certification may be disclosed to the Internal Revenue
Service by transferee and that any false statement contained herein could be punished by fine,
imprisonment or both.
Under penalties of perjury, the undersigned declares that he/she has examined this
certification, and to the best of his/her knowledge and belief it is true, correct, and complete.
LIBERTY MUTUAL INSURANCE
COMPANY
By:
Name:
Title:
tA0392592.1} Exhibit F,Page-1-
LEASE
THIS AGREEMENT OF LEASE (this "Lease") is made and entered into as of
2016, by and between LIBERTY MUTUAL INSURANCE COMPANY, a
Massachusetts stock insurance company with a principal place of business at 175 Berkeley
Street, Boston, MA 02216 ("Tenant") and THE TOWN OF LEXINGTON, acting by and
through its Board of Selectmen, whose address is 1625 Massachusetts Avenue, Lexington, MA
02420 ("Landlord").
WITNESSETH:
WHEREAS, effective as of the date hereof, Tenant has sold its interest in the real
property and improvements thereto as legally described and further depicted in Exhibit A,
attached hereto and incorporated herein by reference (the "Property"), and commonly known as
171-173 Bedford Street, Lexington, Massachusetts, to Landlord, while retaining occupancy of a
portion thereof, which occupancy shall be in accordance with the terms and conditions set forth
in this Lease; and
WHEREAS, the parties hereto, for themselves, their successors and assigns, hereby
covenant, as follows:
1. PREMISES. Landlord hereby leases to Tenant, and Tenant hereby leases from
Landlord the building located on the Property (the "Building"), containing approximately 16,397
rentable square feet of space, together will the exclusive use of all parking areas located on the
Property (collectively referred to herein as the"Premises").
2. TERM. The term of this Lease (the "Term") shall begin on the date that the
Landlord takes title to the Property (the "Commencement Date") and shall end on December
31, 2016 (the "Expiration Date").
3. RENT AND ADDITIONAL COSTS. While Tenant is not responsible for
payment of a monthly rent in connection with this Lease, Tenant shall be responsible for paying
for all services and utilities for the Premises during the Term as set forth in Section 11 herein.
4. MAINTENANCE/CAPITAL WORK
(a) With respect to any required "Capital Work", which for the purposes hereof
shall mean repairs, maintenance, and replacements that are capital in nature (as determined by
generally accepted accounting principles, consistently applied ["GAAP"]), the same shall be the
responsibility of Landlord to effectuate and complete as Landlord deems reasonable in its sole
discretion, done in a manner not to unreasonably disrupt Tenant's regular business operations
conducted from the Premises, and to maintain the Premises in tenantable condition, consistent
with past operations of the Premises.
(b) As used in this Lease, the term "Insurance Premiums" shall mean the cost of the
insurance which Landlord is required to carry under this Lease. Tenant shall pay the Insurance
Premiums incurred during, and allocable to, the Term. Tenant reserves the right to make
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16074.678/654863.1
payments of its share of the Insurance Premiums by electronic funds transfer ("EFT").
Concurrently with the execution and delivery of this Lease, Landlord shall execute and deliver to
Tenant (i) a Liberty Mutual Vendor Direct Deposit/ACH Credit Authorization (the "ACH
Authorization") in the form attached hereto as Exhibit B and such other information as may be
necessary to permit Tenant to pay by EFT, and (ii) a Form W-9 Request for Taxpayer
Identification Number and Certification.
5. BROKERS. Tenant represents and warrants to Landlord that Tenant has dealt
with no broker or agent in connection with the consummation of this Lease other than CB
Richard Ellis - N.E. Partners, L.P. (the "Broker") and in the event of any brokerage claims
against Landlord predicated upon prior dealings with Tenant, Tenant agrees to defend the same
and indemnify Landlord against any such claim. Landlord represents and warrants to Tenant that
Landlord has dealt with no broker in connection with the consummation of this Lease other than
the Broker, and in the event of any brokerage claims against Tenant predicated upon prior
dealings with Landlord, Landlord agrees to defend the same and indemnify Tenant against any
such claim, to the extent permitted by law.
6. USE. Tenant may use the Premises for general office purposes and uses
incidental thereto. Tenant shall have the exclusive right to use the Property to enable Tenant to
obtain full use and enjoyment of the Premises for all customary purposes, except for Landlord's
right to access for repairs as provided herein.
7. ACCESS TO PREMISES.
(a) Landlord and its agents shall not enter the Premises except at reasonable times
during regular business hours to examine the same, to perform the Capital Work, and to show the
Premises to prospective purchasers or to prospective tenants of the Building, provided that in all
cases, (i) Landlord shall give Tenant reasonable prior written notice (except in cases of
emergency when no notice is required), and (ii) such entry shall not unreasonably interfere with
Tenant's access to or normal business operations in the Premises.
(b) Tenant shall have access to and use of the Property twenty-four(24) hours per day
and three hundred sixty-five (365) days per year.
8. NOTICES.
(a) Any notice that either party may desire or be required to give the other shall be in
writing and shall be deemed sufficiently given or rendered if sent by certified mail, return receipt
requested, or nationally recognized overnight delivery that provides written evidence of delivery,
in each case addressed as follows:
If to Landlord: The Town of Lexington
1625 Massachusetts Avenue
Lexington, MA 02420
Attention: Carl Valente, Town Manager
With a copy to: Anderson & Kreiger LLP
Suite 2100
(A0392908.2} -1-
16074.678/654863.1
50 Milk Street
Boston, MA 02109
Attention: Stephanie Dubanowitz
If to Tenant: Liberty Mutual Insurance Company
Corporate Real Estate Department-MS MO1G
175 Berkeley Street
Boston, MA 02116-5066
Attention: Lease Administration
Telephone: (617) 357-9500
With a copy by email to: Lease.Admin(ea�,libertymutual.com
And with a copy to: Reid and Riege, P.C.
One Financial Plaza
Hartford, CT 06103
Attention: Joseph K. Fortier, Esq.
(b) Either party may change its address for the giving of notices under this Lease by
delivering to the other party written notice of such change of address. Notices shall be deemed
given on the date received.
9. ASSIGNMENT AND SUBLETTING. Tenant covenants not to assign, mortgage
or encumber this Lease or sublease all or any portion of the Premises without the prior written
consent of Landlord, which may be withheld in Landlord's sole and absolute discretion.
Notwithstanding any such consent, Tenant shall remain liable for the payment of all costs set
forth herein and for the full performance of the covenants and conditions of this Lease upon any
assignment or subleasing of this Lease.
10. SIGNAGE. During the Term Tenant shall be entitled to maintain and replace the
existing exterior signage at Tenant's sole cost and expense and in good and workmanlike manner
upon prior approval from Landlord, which approval shall not be unreasonably withheld,
conditioned or delayed.
11. TENANT SERVICES. Tenant shall arrange for and shall provide to the
Property at its sole cost and expense the following utilities and services throughout the Term:
(i) Heat, ventilation and air conditioning.
(ii) Cold water for drinking and toilet purposes, and hot and cold water for
lavatory, kitchen and break room purposes, if applicable.
(iii) Cleaning services.
(iv) Maintenance of the exterior areas and improvements on the Property,
including, without limitation, landscaping, snow and ice removal, window cleaning, security and
lighting.
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16074.678/654863.1
(v) Electricity.
(vii) Life safety systems and equipment.
(x) Pest and vermin extermination services.
12. ALTERATIONS.
(a) Tenant may make non-structural improvements, alterations, additions or
installations ("Alterations") in or to the Premises with Landlord's prior written consent, which
consent shall not be unreasonably withheld, delayed or conditioned. Any Alterations shall be
constructed in good and workman like manner and in accordance with all applicable laws
including, without limitation, the applicable zoning ordinance and building code.
(b) Tenant will keep the Property free from any mechanics', materialmens',
designers', or other liens arising out of any work performed, materials furnished or obligations
incurred by or for Tenant or any person or entity claiming by, through or under Tenant with
respect to Alternations. Tenant will notify Landlord in writing thirty (30) days prior to
commencing any Alterations in order to provide Landlord the opportunity to record and post
notices of non-responsibility or such other protective notices available to Landlord under laws.
If any such liens are filed and Tenant, within seven (7) days after such filing, does not release the
same of record or provide Landlord with a bond or other surety satisfactory to Landlord
protecting Landlord and the Property against such liens, Landlord may, without waiving its
rights and remedies based upon such breach by Tenant and without releasing Tenant from any
obligation under this Lease, cause such liens to be released by such means as Landlord
reasonably deems proper, including, but not limited to, paying the claim giving rise to the lien or
posting security to cause the discharge of the lien. In such event, Tenant will promptly
reimburse Landlord for all reasonable amounts Landlord pays (including, without limitation,
reasonable attorneys' fees and costs).
(c) All Alterations upon the Premises made by either party except trade fixtures of
the Tenant shall remain upon and be surrendered with the Premises, as a part thereof, at the
expiration or earlier termination of this Lease.
13. UPKEEP, MAINTENANCE AND REPAIRS.
(a) Except with respect to Capital Work as provided in Section 4 herein, Tenant shall
during the Term, at its cost, keep and maintain the Premises in good order, condition and repair,
including the Buildings, the parking areas, walkways, driveways, landscaping and exterior
lighting, structures, floors, subfloors, slabs, glass, ceilings, common or party walls, the roof and
exterior of the Buildings, the plumbing, heating, lighting, and building electrical equipment,
ventilating equipment, air conditioning equipment, the elevators or escalators, and the Life
Safety Systems and Equipment, consistent with the standards of maintenance and repair of the
Property immediately prior to the Commencement Date, but excluding any obligation to perform
Capital Work.
(b) At the expiration or termination of this Lease, Tenant shall surrender the Premises
in good and clean order, repair and condition in the same condition as the Premises were in as of
(A0392908.2) -1-
16074.678/654863.1
the Commencement Date, reasonable use and wear and damage by fire or other casualty
excepted and broom-clean free from all personal property of Tenant. Without limitation, upon
the expiration or termination of this Lease, Tenant shall not be obligated to remove any
Alterations in or to the Premises.
14. INSURANCE.
(a) During the Term, as may be extended, Landlord shall carry: (i) commercial
general liability insurance in an amount not less than Five Million Dollars ($5,000,000.00),
combined single limit for bodily injury, death, and property damage liability, naming Tenant as
an additional insured thereunder, which requirement may be satisfied through the maintenance of
primary insurance policies with the required coverage or a combination of primary and
excess/umbrella coverage; (ii) commercial property insurance on the Building and the Premises
insuring one hundred percent (100%) of the full replacement value thereof, on a Special Causes
of Loss basis containing appropriate endorsements waiving the insurer's right of subrogation
against Tenant; and (iii) to the extent required by law, workers' compensation insurance and
employers' liability insurance.
(b) During the Term, as may be extended, Tenant shall, at its sole cost and expense,
carry commercial general liability insurance in an amount not less than Two Million Dollars
($2,000,000.00) combined single limit for bodily injury, death, and property damage liability,
naming Landlord as an additional insured thereunder. In addition, Tenant shall carry commercial
property insurance insuring Tenant's personal property located on the Premises containing
appropriate endorsements or otherwise waiving the insurer's right of subrogation against
Landlord, and workers' compensation insurance and employers' liability insurance. Tenant may
provide any such insurance through self-insurance or blanket insurance coverage. All insurance
required to be carried by the parties hereunder shall be issued by responsible insurance
companies qualified to write insurance in the State or Commonwealth in which the Building is
located. Prior to the Commencement Date, a certificate of the insurer evidencing the existence
and the amount of each required insurance policy shall be delivered by either party to the other.
15. WAIVER OF CLAIMS.
Notwithstanding anything in this Lease to the contrary, Landlord and Tenant each hereby
waives all claims and rights of recovery against the other and against the officers, employees,
agents, and representatives of the other, on account of loss by or damage to the waiving party of
its property or the property of others under its control, caused by or resulting from any casualty
of the type covered by the commercial property insurance required to be carried under this Lease,
based on coverage for one hundred percent (100%) replacement cost, without regard for any
deductible amounts, and without regard for whether such insurance is then in effect, and
notwithstanding that any such loss or damage may be due to or result from the negligence or
willful misconduct of either of the parties or their respective officers, employees, or agents.
16. INDEMNIFICATION.
(a) Tenant agrees to defend, indemnify and save Landlord harmless from and against
all claims to the extent caused by (i) the negligence or willful misconduct of Tenant or Tenant's
employees, agents or contractors, and (ii) any accident, injury or damage to any person or
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16074.678/654863.1
property occurring in the Premises after the date of this Lease until the expiration or earlier
termination of this Lease. This indemnity and hold harmless agreement shall include indemnity
from and against any and all liability, fines, suits, demands, costs and expenses of any kind or
nature (including, without limitation, reasonable attorneys' fees and disbursements) incurred in,
or in connection with, any such claim or proceeding brought thereon, and the defense thereof.
Nothing contained in this subparagraph 16 shall be construed to obligate Tenant to indemnify
Landlord to the extent any such claim results from the gross negligence or willful misconduct of
Landlord or Landlord's employees, agents or contractors, subject to M.G.L. chapter 186, section
15.
(b) Landlord agrees to defend, indemnify and save Tenant harmless, to the extent
permitted by law, from and against all claims arising from (i) the negligence or willful
misconduct of Landlord or Landlord's employees, agents or contractors, and (ii) any accident,
injury or damage to any person or property occurring outside the Premises, but in the Buildings
or on the Property, to the extent caused by Landlord, after the date of this Lease until the
expiration or earlier termination of this Lease. This indemnity and hold harmless agreement
shall include indemnity from and against any and all liability, fines, suits, demands, costs and
expenses of any kind or nature (including, without limitation, reasonable attorneys' fees and
disbursements) incurred in, or in connection with, any such claim or proceeding brought thereon,
and the defense thereof, to the extent permitted by law. Nothing contained in this section shall
be construed to obligate Landlord to indemnify Tenant to the extent any such claim results from
the negligence or willful misconduct of Tenant or Tenant's employees, agents, or contractors.
(c) Nothing in this section is intended to require indemnification for any property
claim for which insurance is required to be maintained under the terms of this Lease. The rights
and obligations of Landlord and Tenant under this section shall survive the expiration or earlier
termination of this Lease.
17. MONTH-TO-MONTH TENANCY; HOLDOVER.
If Tenant, any assignee or subtenant remains in possession of the Premises (or any part
thereof) beyond the Expiration Date, such holding over shall be without right and shall not be
deemed to create any tenancy, but the Tenant shall be a tenant at sufferance. The Landlord shall
be entitled to a daily payment from Tenant for remaining in the Premises after the Expiration
Date in the amount of$2,246 a day. Notwithstanding the foregoing, in no event shall Tenant be
liable for any type of direct, indirect, special or consequential damages (including but not limited
to any loss of profits) in connection with Tenant's holding over and failure to redeliver
possession of the Premises to Landlord following the expiration or other termination of the Term
of this Lease, or following the end of such month-to-month tenancy. The terms and provisions
of this section shall survive the expiration or of this Lease.
18. DAMAGE AND DESTRUCTION AND CONDEMNATION. Landlord may
elect to terminate this Lease if a substantial portion of the Premises or the Building is damaged
by fire or other casualty or is taken by eminent domain. If such fire, casualty or taking renders
the Premises substantially unsuitable for the permitted use set forth herein, Tenant may elect to
terminate the Lease if. (a) Landlord fails to give written notice to Tenant within thirty (30) days
of such fire, casualty or taking of its intention to restore the Premises or (b) Landlord fails to
restore the Premises to a condition substantially suitable for the use permitted herein within one
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hundred eighty days (180) days of such fire, casualty or taking. Landlord reserves and Tenant
grants to Landlord all rights which Tenant may have to damages for injury to the Premises by
any taking by eminent domain, except for damage to Tenant's personal property.
19. ENVIRONMENTAL CONDITIONS.
(a) Tenant's will not use, or allow to be used, the Premises in any way that will result
in or involve the presence, use, generation manufacture, refining, transportation, treatment,
storage, handling or disposal of, or the conduct or performance of any activity in connection
with, any "hazardous materials" (as hereinafter defined) under Environmental Laws (as
hereinafter defined).
(b) Tenant shall indemnify and hold harmless Landlord, members, volunteers,
agents, and any of its employees, against all costs incurred (including without limitation,
amounts paid pursuant to penalties, fines and/or orders) arising out of any claim made by
Federal, State or local agencies or departments or private litigants or third parties with respect to
violations by Tenant, its agents or employees during the Term of this Lease, of environmental or
health laws, rules, regulations, orders or common law, provided such violations are caused by
Tenant, or Tenant's agents, contractors or employees, or Tenant's or Tenant's agents',
contractors' or employees' use of the Premises. Tenant shall promptly remove from the Premises
any hazardous materials discovered thereon which have been used, discharged, disposed of or
stored thereon by Tenant or Tenant's agents, representatives, employees, contractors, guests,
licenses or invitees, and shall comply in all respects with any and all federal, state, and local
governmental laws, codes, ordinances and regulations governing such removal and disposal,
whether nor in effect or hereafter enacted, with title to all such hazardous materials to remain,
and be stored or disposed of, in Tenant's name. Tenant's indemnification shall specifically cover
costs, including capital, operating, and maintenance costs, incurred in connection with any
investigation or monitoring of site conditions, any clean-up, containment, remedial, removal, or
restoration work required or performed by any federal, state, or local governmental agency or
political subdivision or performed by any nongovernmental entity or person because of the
presence or release of any hazardous material in or into the air, soil, groundwater, or surface
water at, on, about, under, or within the Premises (or any portion thereof), by Tenant or Tenant's
agents, representatives, employees, guests, contractors, licensees or invitees and any claim of
third parties for loss or damage due to such hazardous material.
(c) For the purposes of this Lease, "hazardous materials" shall mean substances
defined as "hazardous substances", "toxic substances" or "hazardous wastes" in the Federal
Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended;
the Federal Hazardous Materials Transportation Act, as amended; the Federal Resource
Conservation and Recovery Act, as amended (RCRA); oil and underground storage tanks;
asbestos and material containing asbestos; those substances defined as "hazardous wastes",
"hazardous materials" or "hazardous substances" in the laws of the state or commonwealth in
which the Property is located; and as such substances are defined in the regulations adopted and
publications promulgated pursuant to said laws (said laws and regulations referred to herein as
"Environmental Laws"), but shall not include those substances or products for use in amounts
and for purposes approved by governmental authorities or those typically used, stored, generated
or disposed of in a facility of this type provided such substances have been and are used, stored,
generated or disposed of in compliance with all Environmental Laws.
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20. TENANT'S COMPLIANCE WITH LAWS. Tenant's use of the Premises
shall not violate any applicable statutes, codes, ordinances, orders, rules and regulations of any
municipal or governmental entity.
21. CONDITION OF THE PREMISES.
Landlord has not made and makes no representations or warranties of any kind with
respect to the condition of the Premises or the Property, including but not limited to any warranty
of habitability or fitness for any purpose, and hereby disclaims any and all warranties with
respect to the Premises and Property. Tenant takes possession of the Premises AS IS, WHERE
IS, and WITH ALL FAULTS.
22. QUIET ENJOYMENT.
So long as Tenant shall fully and timely perform all its obligations under this Lease,
Landlord covenants that Tenant shall have peaceful and quiet enjoyment of the Premises during
the Term.
23. DEFAULT; REMEDIES. If Tenant shall: (i) fail to pay any charges hereunder
within ten (10) days after receiving written notice that the same is overdue; (ii) fail to fulfill any
other covenant or provision of this Lease on its part to be performed and fail to remedy such
failure within thirty (30) days after Landlord shall have given Tenant written notice of such
failure (or such additional time as is reasonably necessary, if such failure cannot reasonably be
cured within such 30-day period), or (iii) make any assignment for the benefit of creditors or
files a petition for relief under any bankruptcy or insolvency law or code; or if such a petition
filed against Tenant is not dismissed within sixty (60) days; or if a custodian, receiver or similar
agent is authorized or appointed to take charge of all or substantially all of the assets of Tenant or
if Tenant's interest in this Lease is taken on execution or other process of law in any action
against Tenant, then the same shall be a "Tenant Event of Default" and Landlord shall have all
rights, powers and remedies available at law or equity as a result thereof in addition to the
following: (i) Landlord may exercise its right of self-help provided in Section 24 hereof or (ii)
Landlord may elect to terminate this Lease and the tenancy created hereby by giving notice f
such election to Tenant, and may re-enter the Premises by summary proceedings or otherwise,
and may remove Tenant and all other persons and property from the Premises, and may store
such property in a public warehouse or elsewhere at the cost of and for the account of Tenant
without resort to legal process and without Landlord being deemed guilty of trespass or
becoming liable for any loss or damage occasioned thereby. Landlord shall use all commercially
reasonable efforts to mitigate its damages from a Tenant Event of Default.
24. SELF-HELP. Landlord shall have the right, but shall not be required, to pay such
sums or do any act which requires the expenditure of moneys which may be necessary or
appropriate by reason of the failure or neglect of Tenant to perform any of the provisions of this
Lease, and in the event of the exercise of such right by Landlord, Tenant agrees to pay to
Landlord forthwith upon demand all such sums; and if Tenant shall default in such payment,
Landlord shall have the same rights and remedies as Landlord has hereunder for the failure of
Tenant to pay any fees due under this Lease.
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16074.678/654863.1
25. WAIVERS. No waiver, express or implied, by either party of any breach of any
covenant, agreement or duty on the part of the other to be performed or observed shall be
construed as a waiver of any other breach of the same or any other covenant, agreement or duty.
26. SUBORDINATION. This Lease shall be subject and subordinate to the lien of
any mortgage, deed of trust or ground lease hereafter placed on all or any part of the Property.
This section 26 shall be self-operative and not further instrument of subordination shall be
necessary.
27. ESTOPPEL. Upon twenty (20) days' written notice from Landlord, Tenant
agrees to execute and deliver to Landlord or to any other person at Landlord's direction, a
written certification that this Lease is in full force and effect and specifying the Commencement
Date, the Term of this Lease, the dates to which Rent and other charges due hereunder have been
paid, any specific factual terms of this Lease and to Tenant's actual knowledge whether any
defaults or failures of performance exist.
28. USE OF NAME OR PUBLICITY.
Landlord and its agents are not granted any license, privilege or other right to use any
trademark or service mark, nor the name of any company which is part of the Liberty Mutual
Group of Companies, in any advertising, promotional or marketing material or like
communication in any form whatsoever, including, but not limited to, Landlord and its agents'
websites, regardless of the communication medium used. Landlord will in all events be
responsible for the breach of the covenants contained in this Paragraph by Landlord's agents.
29. GENERAL.
(a) Whenever the singular number is used in this Lease and when required by the
context, the same shall include the plural, and the masculine gender shall include the feminine
and neuter genders, and the word "person" shall include corporation, firm or association. If there
be more than one Landlord, the obligations imposed upon Landlord under this Lease shall be
joint and several.
(b) The headings or titles to paragraphs of this Lease are not a part of this Lease and
shall have no effect upon the construction or interpretation of any part of this Lease.
(c) This Lease, including the exhibits and any schedules attached hereto, are
incorporated into this Lease by this reference. This Lease contains all of the agreements and
conditions made between the parties to this Lease and may not be modified orally or in any other
manner than by agreement in writing signed by all parties to this Lease.
(d) Time is of the essence of each term and provision of this Lease.
(e) The terms and provisions of this Lease shall be binding upon and inure to the
benefit of the heirs, executors, administrators, successors, and assigns of Landlord and Tenant.
(f) This Lease shall be governed by the law of the state or commonwealth of the
locus of the Premises without regard to those portions of such law dealing with conflicts of law.
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16074.678/654863.1
(g) Tenant shall not commit or suffer any waste upon the Premises, or any nuisance,
or other act or thing which may disturb the quiet enjoyment of any other tenant in the Buildings
containing the Premises or any building in the project in which the Premises are located.
(h) In no event shall any officer, director, partner, shareholder, agent or employee of
Tenant be personally liable for any of the obligations of Tenant under this Lease. In no event
shall any member, agent or employee of Landlord be personally liable for any of the obligations
of Landlord under this Lease.
(i) The delivery by either party of unexecuted copies of this Lease is solely for the
purpose of review by the party to whom delivered and is in no way to be construed as an offer or
an acceptance by either party or an agreement to enter into a Lease, as applicable, and neither
party shall be bound by the terms hereof until a definitive lease agreement satisfactory to both
Landlord and Tenant has been executed and delivered by both parties.
0) This Lease does not create the relationship of principal and agent, or of
partnership, joint venture, or of any association or relationship between Landlord and Tenant
other than that of landlord and tenant.
(k) For purposes hereof, "Force Majeure" shall mean, with respect to the applicable
party, if such party is delayed or prevented from performing any act required in this Lease
(excluding, however, the payment of or availability of money) by reason of acts of God; strikes;
lockouts; labor troubles; inability to procure materials; governmental laws or regulations;
casualty; orders or directives of any legislative, administrative, or judicial body or any
governmental department; inability to obtain any governmental licenses, permissions or
authorities (despite commercially reasonable pursuit of such licenses, permissions or authorities);
and other similar or dissimilar causes beyond the party's reasonable control.
(1) Notwithstanding any contrary term or provision of this Lease, Tenant's covenants
and obligations to pay rent and to perform its other obligations hereunder are absolute,
unconditional and irrevocable obligations which are separate and independent from any of
Landlord's covenants, obligations, warranties or representations in this Lease. Tenant shall have
no right to hold back, offset or fail to pay any amounts due hereunder nor to terminate this Lease
for any alleged default by Landlord or for any other reason whatsoever.
[Signatures Follow on Next Page]
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16074.678/654863.1
IN WITNESS WHEREOF, the Landlord and Tenant have executed this Lease under
seal as of the date first above written.
"Landlord":
THE TOWN OF LEXINGTON
By:
Name: Carl Valente
Title: Town Manager
Duly Authorized
Date: , 2016
"Tenant":
LIBERTY MUTUAL INSURANCE COMPANY,
a Massachusetts stock insurance company
By:
Name:
Title:
Date: , 2016
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16074.678/654863.1
EXHIBIT A
Legal Description of Property
A certain parcel of land with the buildings situated thereon in Lexington, Middlesex
County, being shown on a Plan of Land in Lexington, Massachusetts, dated November 20, 1953,
by R.C. Dwyer, Civil Engineer and recorded with Middlesex South District Registry of Deeds as
Plan No. 744 of 1955 at Book 8457, page 516, bounded and described as follows:
NORTHERLY: By land now or formerly of Crowell Tube Company, two hundred
and forty-two and 18/100 (242.18)feet;
NORTHEASTERLY: By land now or formerly of Crowell Tube Company ninety-four
and 32/100 (94.32)feet;
NORTHERLY: By land now or formerly of Crowell Tube Company one hundred
(again) forty-eight and 94/100 (148.94)feet;
NORTHWESTERLY: By land now or formerly of the Crowell Tube Company, fifty-four
and 66/100 (54.66)feet;
NORTHERLY: By land now or formerly of the Crowell Tube Company,
(again) one hundred fifty-three and 22/100 (153.22)feet;
EASTERLY: By land now or formerly of Tropeano, two hundred one and
05/100 (201.05)feet;
SOUTHERLY: By land now or formerly of Joseph H. and Carolyn H. Mealey,
six hundred eighty-one and 82/100 (681.82)feet;
WESTERLY: By Bedford Street one hundred thirty and 59/100 (130.59)
feet and forty-one and 66/100 (41.66)feet.
Containing two and 77/100 (2.77) acres, be any or all of said measurements or contents more
or less or however otherwise the same may be bounded, measured or described.
Being the same premises conveyed to Liberty Mutual Insurance Company by deed from
Harry S. Sukeforth (a/k/a Harold S. Sukeforth), William A. Schromm, and George A.
McLaughlin, as trustees of the Stevens Family Trust, dated November 20, 1967 and recorded
with Middlesex South District Registry of Deeds at Book 11429 at Page 718.
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16074.678/654863.1
EXHIBIT B
ACH Authorization
(Liberty Mutual Vendor Direct Deposit/ACH Credit Authorization)
Vendor Name & TIN # (Required) Contact Person
Remittance Address Title
City Telephone Number
State Zip + 4 Fax Number
E-mail Address Vendor # (Liberty Mutual
❑ If you would like to receive an email containing an explanation of the payment, check
this box and provide an email address.
Authorization Agreement for Direct Deposit (ACH Credits)
I hereby authorize Liberty Mutual to initiate credit entries for vendor payments to the account
indicated below, and the
depository named below, is authorized to credit such account. Pursuant to the National
Automated Clearing House
Association (NACHA) rules, Liberty Mutual may initiate a reversing entry or reversing file to
recall a duplicate or erroneous
entry, which was previously initiated. I understand that, if a reversal action is required, Liberty
Mutual will notify the contact
above of the error and the reason for the reversal.
VOIDED CHECK
Please complete section below
Attach a voided check
Depository Name
Branch
ABA Routing Number
Checking Savings
Account Number/ Type (If account type is not indicated, checking account will be used.)
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16074.678/654863.1
Is this Direct Deposit payment being sent to a bank account outside of the United States?
Yes or No (circle one)
Does this bank account have standing orders to move funds from the account we credited
to a bank outside of the United States? Yes or No (circle one)
This authority will continue until such time Liberty Mutual has had a reasonable opportunity to
act upon written request to terminate or change the Direct Deposit service initiated herein.
Authorization Name (Print) Title (Print)
Authorization Signature on Account Date
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16074.678/654863.1
AGENDA ITEM SUMMARY
LEXINGTON BOARD OF SELECTMEN MEETING
AGENDA ITEM TITLE:
Special Town Meeting -Article Positions (15 min.)
PRESENTER: ITEM
NUMBER:
Carl F. Valente, Town Manager
1.2
SUMMARY:
Continue discussion regarding Special Town Meeting Articles and motions. Draft motions are attached.
SUGGESTED MOTION:
FOLLOW-UP:
Copies of motions to be prepared for Special Town Meeting.
DATE AND APPROXIMATE TIME ON AGENDA:
9/21/2016 6:45 p.m.
ATTACHMENTS:
Description Type
D Artra tar Positions; Backup Matorinl
D Drafl Motions Backup Matorinl
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TOWN OF LEXINGTON
MOTIONS
Special Town Meetin 2016-5
(Articles 1 — '
September 21, 2016
Article 1 REPORTS OF BOARDS, OFFICERS,AND COMMITTEES
a. Report of the Appropriation Committee
MOTION: That the report of the Appropriation Committee be received and placed on file.
b. Report of the Capital Expenditures Committee
MOTION: That the report of the Capital Expenditures Committee be received and placed on
file.
C. Report of the Community Preservation Committee
MOTION: That the report of the Community Preservation Committee be received and placed
on file.
(9/21/16)
Article 2 LAND PURCHASE— 171-173 BEDFORD STREET
MOTION: That(a)the Selectmen be authorized to purchase, take by eminent domain or
otherwise acquire for municipal or school purposes, any fee, easement, or other
interest in all or any part of land known as 171-173 Bedford Street and shown as
Lot 76 on Assessors' Property Map 64, now or formerly owned by the Liberty
Mutual Insurance Company, on such terms and conditions as the Selectmen may
determine, and to conduct all necessary site surveys, environmental assessments
and to incur legal and closing costs in connection therewith; that$4,443,000 be
appropriated for such land acquisition and related costs, including, but not limited
to, an architectural and engineering study of the site for use by the Fire
Department, and that to raise such amount, the Treasurer, with the approval of the
Board of Selectmen, is authorized to borrow $4,443,000 under M.G.L. Chapter
44, Section 7, as amended, or pursuant to any other enabling authority; and (b)
that the Selectmen be authorized to lease a portion of said land to Liberty Mutual
Insurance Company or an affiliated entity thereof, subject to terms acceptable to
the Selectmen. Any premium received by the Town upon the sale of any bonds or
notes approved by this vote, less the cost of preparing issuing and marketing
them, and any accrued interest received upon the delivery of such bonds or notes,
may be applied to the payment of project costs approved by this vote, thereby
reducing the amount authorized to be borrowed to pay such costs by a like
amount.
(9/21/16)
Article 3 SUPPLEMENTAL APPROPRIATION FOR MIDDLE SCHOOLS—
ADDITIONS AND REMODELING
MOTION: That this article be indefinitely postponed.
(9/21/16)
Article 4 SUPPLEMENTAL APPROPRIATION FOR SCHOOL FACILITIES
CAPITAL PROJECTS
MOTION: That the Town appropriate $910,000, in addition to the amount voted under
Article 2 of Special Town Meeting-1 held on November 2, 2015, for the purchase
and installation of six modular classrooms, and that to raise such amount the
Treasurer, with the approval of the Board of Selectmen, is authorized to borrow
$910,000 under M.G.L. Chapter 44, Section 7, as amended, or any other enabling
authority. Any premium received by the Town upon the sale of any bonds or
notes approved by this vote, less the cost of preparing issuing and marketing
them, and any accrued interest received upon the delivery of such bonds or notes,
may be applied to the payment of project costs approved by this vote, thereby
reducing the amount authorized to be borrowed to pay such costs by a like
amount.
(9/21/16)
Article 5 APPROPRIATE FUNDS FOR POLICE STATION FEASIBILITY
STUDY
MOTION: That the Town appropriate $65,000 for studying the feasibility of siting,
constructing and equipping a new police station, and that to meet this
appropriation $65,000 be raised in the tax levy.
(9/21/16)
Article 6 AMEND FY2017 OPERATING, ENTERPRISE FUND AND
COMMUNITY PRESERVATION BUDGETS
MOTION: (a) That the following adjustments be made to the following line items for the
FY2017 budget as approved under Article 4 of the 2016 Annual Town Meeting:
Line Item I Program From To
8500 Town Clerk Personal Services $362,681 $ 368,039
8500 Town Clerk Personal Expenses $124,675 $ 125,567
8320 Misc. Boards and Committees $ 4,500 $ 34,500
7100 Land Use, Health and Development Expenses $414,153 $ 436,613
and, that said adjustments be funded from the tax levy.
MOTION: (b) That the following adjustment be made to the following line item for the
FY2017 budget to operate the Water Division of the Department of Public Works
as approved under Article 5(a) of the 2016 Annual Town Meeting:
Program From I To
MWRA Water Assessment $ 7,378,622 $ 7,349,661
and, further that$90,500 be appropriated from Water Fund Retained Earnings to
support the FYI Water Division Budget in addition to $131,000 of Retained
Earnings appropriated under Article 5(a) of the 2016 Annual Town Meeting.
MOTION: (c) That the following amounts be appropriated to the following line item for the
FY2017 budget to operate the Wastewater(Sewer)Division of the Department of
Public Works as approved under Article 5(b) of the 2016 Annual Town Meeting,
and that said amounts be transferred from the following sources:
Program From I To
MWRA Wastewater Assessment $ 7,311,103 $ 7,265,870
MOTION: (d) That the following adjustment be made to the FY2017 budget of the
Community Preservation Committee as approved under Article 8(p) of the 2016
Annual Town Meeting:
Program From To
CPA Debt Service and Related Costs $ 3,289,721 $ 3,329,721
and that said adjustment be funded from the Undesignated Fund Balance of the
Community Preservation Fund.
(9/21/16)
Article 7 ESTABLISH AND APPROPRIATE TO AND FROM SPECIFIED
STABLIZATION FUNDS
MOTION: (a) That $48,621.58 be appropriated to the Transportation Demand Management
Stabilization Fund, and to meet this appropriation $48,621.58 be transferred from
the Transportation Demand Management special revenue account;
(b) That $1,878,771 be appropriated to the Capital Stabilization Fund, and to meet
this appropriation $1,878,771 be raised in the tax levy.
(9/21/16)
AGENDA ITEM SUMMARY
LEXINGTON BOARD OF SELECTMEN MEETING
AGENDA ITEM TITLE:
Selectmen Committee Appointments & Resignations (5 min.)
PRESENTER: ITEM
NUMBER:
Suzanne Barry, Chairman
1.3
SUMMARY:
Historic Districts Commission
Paul Ross has resigned as a member.
Nancy Shepherd has resigned as an associate member.
Town Counsel will attend the meeting to review the requirements of the HDC special act for filling of vacant
Associate positions.
Transportation Advisory Committee
You are being asked to appoint Susan Barrett as a member. Ms. Barrett is filing the vacancy of Francine
Steiglitz. This term will expire September 30, 2017.
Appointment:Transportation Advisory Committee
SUGGESTED MOTION:
Move to accept the resignations of Paul Ross and Nancy Shepherd from the Historic Districts Commission.
Move to appoint Susan Barrett as a member to the Transporation Advisory Committee, for a term through
September 2017.
FOLLOW-UP:
Selectmen's Office
DATE AND APPROXIMATE TIME ON AGENDA:
9/21/2016 7:00 p.m.
ATTACHMENTS:
Description Type
AGENDA ITEM SUMMARY
LEXINGTON BOARD OF SELECTMEN MEETING
AGENDA ITEM TITLE:
Approve One-Day Liquor License - Cary Memorial Library Foundation
PRESENTER: ITEM
NUMBER:
Suzanne Barry
C.1
SUMMARY:
The Cary Memorial Library Foundation has requested a one-day liquor license to serve beer and wine at their
"Trans formative Spaces Donor Thank you" event at the Cary Memorial Library on Friday, October 14, 2016
from 7:00 p.m. until 9:00 p.m.
SUGGESTED MOTION:
Motion to approve the consent agenda.
FOLLOW-UP:
Selectmen's Office
DATE AND APPROXIMATE TIME ON AGENDA:
9/21/2016
ATTACHMENTS:
Description Type
AGENDA ITEM SUMMARY
LEXINGTON BOARD OF SELECTMEN MEETING
AGENDA ITEM TITLE:
Approve Minutes and Executive Session Minutes
PRESENTER: ITEM
NUMBER:
Suzanne Barry, Chairman
C.2
SUMMARY:
The minutes of June 6, 2016; June 13, 2016; June 22, 2016 and June 27, 2016 are ready for your review and
approval.
The Executive Session minutes of June 6, 2016; June 13, 2016 and June 27, 2016 are ready for your review and
approval.
SUGGESTED MOTION:
Motion to approve the minutes of June 6, 2016; June 13, 2016; June 22, 2016 and June 27, 2016.
Motion to approve and not release the Executive Session minutes of June 6, 2016; June 13, 2016 and June 27,
2016.
FOLLOW-UP:
Selectmen's Office
DATE AND APPROXIMATE TIME ON AGENDA:
9/21/2016
ATTACHMENTS:
Description Type
AGENDA ITEM SUMMARY
LEXINGTON BOARD OF SELECTMEN MEETING
AGENDA ITEM TITLE:
Approximate Adjourn Time
PRESENTER: ITEM
NUMBER:
SUMMARY:
SUGGESTED MOTION:
FOLLOW-UP:
DATE AND APPROXIMATE TIME ON AGENDA:
9/21/2016 7:05 p.m.