Gilman MOA 02 04 15 — File 198552

1 MEMORANDUM OF AGREEMENT by and BETWEEN THE MASSACHUSETTS BAY TRANSPORTATION AUTHORITY and THE CITY OF SOMERVILLE This Memorandum of Agreement (“MOA”) is dated as of this ___th day of ___________ by and between the Massachusetts Bay Transportation Authority (“MBTA”), a body politic and corporate and a political subdivision of the Commonwealth of Massachusetts existing pursuant to Massachusetts General Laws, Chapter 161A, as amended, with offices at Ten Park Plaza, Boston, Massachusetts 02116, and the City of Somerville (“COS”), a body politic and corporate and a political subdivision of the Commonwealth of Massachusetts with offices at City Hall, 93 Highland Avenue, Somerville, MA 02143. The MBTA and COS shall hereinafter sometimes be referred to individually as a “Party” and collectively as the “Parties”. For purposes of this Agreement, “COS” may also refer to the Somerville Redevelopment Authority. Whereas, the parties entered into a Memorandum of Agreement dated July 26, 2012 setting forth their respective commitments and obligations relating to construction of the Green Line Extension (“GLX”) (“2012 MOA”), which 2012 MOA, and all amendments thereto remain in full force and effect; and Whereas, because the Commonwealth and the MBTA committed to a phased approach to GLX, the 2012 MOA dealt more particularly with Phases 1, 2, and 2A, and specifically the timeline and respective obligations of the parties regarding the Union Square Green Line station, including but not limited to acquisition of necessary property rights; and Whereas, the parties are now ready to set forth the respective obligations of the parties relating to the prosecution of Phase 4 work along the Lowell Commuter Rail right-of-way, and specifically in the proposed Gilman Square Station area, and Whereas, the parties wish to memorialize their respective goals and obligations concerning construction and operation of the Gilman Square Station, subject to the availability of MBTA funding; NOW THEREFORE, in consideration of the promises and mutually dependent covenants set forth herein, and other good and valuable consideration, the receipt of which is hereby acknowledged, the MBTA and COS agree as follows: ARTICLE I: CITY OBLIGATIONS 1.1 COS shall convey to the MBTA, for one dollar: (i) a permanent exclusive volumetric easement for the Gilman Square Station headhouse and pick-up/drop-off area, and related appurtenant facilities which shall be limited in upper elevation, above which elevation COS shall

2 retain air rights, in the land shown as “Permanent Volumetric Easement Area” on a plan attached as Exhibit A, Sheet 1; (ii) a permanent exclusive volumetric easement for rail right of way including track and appurtenant improvements in the land shown as Permanent Volumetric Easement Area 2 on a plan attached as Exhibit A, Sheet 2; (iii) a permanent exclusive volumetric easement for a traction power substation, retaining wall, bike shelters, station egress and appurtenant improvements in the land, which shall be limited in upper elevation, above which elevation COS shall retain air rights, shown as Permanent Volumetric Easement Area 3 on a plan attached as Exhibit A, Sheet 3; and (iv) a permanent easement behind Somerville High School and City Hall for Gilman Square Station egress and a retaining wall, which shall be limited in upper elevation, above which elevation COS shall retain air rights, shown as “Permanent Volumetric Easement Area 4” on Exhibit A, Sheet 4. The easement areas described in (i) through (iv) above shall be collectively referred to herein as “Permanent Volumetric Easement Areas”. COS and the MBTA may amend this Agreement regarding the elevation and volume of the Permanent Volumetric Easement Areas, (b) COS shall convey to the MBTA temporary easements shown as “Temporary Easement Area 1”, “Temporary Easement Area 2”, and “Temporary Easement Area 3” on a plan attached as Exhibit B, for construction of a traction power substation, retaining wall, bike shelters, and station egress. Such Temporary Easement Areas shall terminate on the Termination Date, as defined in Section 1.2. 1.2 (a) COS shall convey to the MBTA, for one dollar, a temporary easement in the land shown as “Temporary Easement Area” on a plan attached as Exhibit C, for the limited purpose of construction staging, storage, and laydown for the construction of the Gilman Square and Lowell Street stations, and appurtenant improvements. Such Temporary Easement Area shall terminate on the first to occur of: (i) nine (9) months after the date of commencement of pre-revenue testing for Phase 4; or (ii) 90 days after the date of first fare collection at Gilman Square Station (“Termination Date”). At its option, after 30 days notice to the MBTA, COS shall have the right to remove any and all materials remaining on the Temporary Easement Area after such Termination Date, and MBTA shall be responsible for any costs incurred by COS in the removal, storage or disposal of any such materials remaining on this site after such date. MBTA agrees to take all commercially reasonable actions to require its contractor to vacate the Temporary Easement Area on or before the Termination Date, and to take, at its sole cost, such commercially reasonable actions to cause its contractor to vacate the Temporary Easement Area in the event that its contractor continues to occupy the Temporary Easement Area after the Termination Date. Any such Temporary Easement shall require MBTA and/or its contractor, when vacating the site, to leave it in a condition that does not create a hazard to public safety. (b) COS shall convey to the MBTA, for one dollar, a temporary easement on a parcel of land on Skilton Avenue “Skilton Temporary Easement Area” shown more particularly on Exhibit D, for the limited purpose of constructing a retaining wall and a dog park. On or before the Termination Date, as defined herein, the MBTA or its contractor shall have commenced construction on the Skilton Temporary Easement Area of the dog park described in Section 2.4, with such construction reaching substantial completion within six (6) months after the Termination Date. 1.3 All easements, deeds, licenses or other necessary conveyance documents shall be in form and substance reasonably acceptable to COS and the MBTA.

3 1.4 COS shall provide MBTA with a document from the Somerville Historic Preservation Commission allowing demolition of the Homan’s Building located at 350 Medford Street, Somerville. 1.5 In lieu of the signalized intersection design proposed by the MBTA, COS shall undertake the redesign and engineering of an un-signalized intersection at Medford, Marshall and Pearl Streets (“Square-about”) envisioned as part of the October 2012-January 2013 Somerville by Design process. The Square-about shall be designed to be fully ADA compliant. COS shall undertake construction of the Square-about, which shall be phased simultaneously with the construction of the Gilman Square Station and completed on or before the opening of the Gilman Square Station. COS shall obtain all permits and approvals for the Square-about. The limit of the COS Square-about construction work shall be easterly of the west curbline of Medford Street. 1.6 COS acknowledges that COS’ Square-about intersection design may result in a lower level of service than the signalized intersection design submitted by the MBTA as part of the Final Environmental Impact Report. COS will provide a letter to the MBTA stating that intersection improvements at Gilman Square Station included in the Environmental Reports are not required. ARTICLE II: MBTA OBLIGATIONS 2.1 MBTA obtained approval, under Section 106 of the National Historic Preservation Act, for demolition of the Homan’s Building located at 350 Medford Street, Somerville. MBTA shall work with COS Planning Staff, and the COS Historic Preservation Commission to document and/or preserve certain historically-significant elements of the Homan’s Building, in particular, the lion’s head and surrounding architectural stone details that frame the entry door. The MBTA will move these elements to a location selected by COS for storage by COS at its cost. The parties acknowledge that extraction of these features may require the consultation and oversight of a preservation mason. After such approval and after removal of all stored COS property in the building, by COS, the MBTA will, at its sole cost, conduct environmental remediation of the building and demolish the building, to grade, not including foundations and slab. 2.2 Subsequent to the conveyance by COS of the Permanent Volumetric Easement Areas, Permanent Easement Areas, Temporary Easement Area and Skilton Temporary Easement Area, the MBTA shall undertake remediation of such Easement Areas in accordance with Sections 3.1, 3.2, 3.3 and 2.1. 2.3 Subsequent to the conveyance by COS of the easements in accordance with Article I, contingent upon the award of a full funding grant agreement by the Federal Transit Administration and approval by the MassDOT Board of Directors as necessary, the MBTA shall construct the proposed Gilman Square and Lowell Street Stations. 2.4 In consultation with COS, the MBTA shall design and construct a dog park with a double fence of black vinyl-coated chainlink fencing, a water feature with a dog spout,

4 landscaping, lighting, a gazebo or other shade element, and a minimum of four benches after its contractor has completed construction of the retaining wall in the vicinity of the Skilton Temporary Easement Area. COS shall own, operate and maintain the dog park and dog park improvements. COS shall defend, indemnify and hold harmless the MBTA from any claim arising out of the use of the dog park and the dog park improvements. 2.5 The MBTA shall provide COS in a timely fashion with copies of any surveys, appraisals, title reports, design work, and environmental information already completed or to be completed by the MBTA or its consultants. 2.6 The MBTA shall notify COS of all public meetings concerning Gilman Square and Lowell Street Stations. Said notice shall be provided to COS at the time said public meetings are scheduled. The MBTA will meet with COS in a timely fashion concerning the design of the Stations, the pickup-dropoff areas, traffic signalization, and roadway improvements ancillary to the Stations. The MBTA shall provide to COS in a timely fashion a full set of plans and specifications for Gilman Square and Lowell Street Stations for COS’ review and comment. COS shall submit comments or suggestions within 30 days of receipt of such plans and specifications. The MBTA shall consider in good faith any comments and suggestions submitted by COS with respect to such submissions. 2.7 Subsequent to the execution of this MOA, the MBTA and COS shall enter into a separate agreement, subject to the approval of the MBTA General Manager and MBTA Board of Directors, outlining a process for the conveyance of air rights for development over a portion of the Lowell Commuter Rail ROW, including the consideration to be paid by COS, with boundaries to be mutually agreed upon but potentially connecting the Permanent Volumetric Easement Areas and the Temporary Easement Area, the final boundaries to be determined as part of such air rights agreement. Such conveyance will occur when COS has a bona fide developer or developers with the experience, capacity, and willingness to construct such air rights development(s) and the MBTA has determined in its reasonable judgment that the proposed air rights development(s) will be feasible and safe, applying criteria customarily applied to air rights development(s) over operating railroad rights-of-way. ARTICLE III: ALLOCATION OF COSTS 3.1 The MBTA shall be solely responsible for the cost of demolition of the building on the Skilton Temporary Easement Area, as well as the costs of remediation, and clearing of the Skilton Avenue parcel. 3.2 COS shall be solely responsible for the cost of removal and disposal of all stored property in the Homan’s Building. MBTA shall be solely responsible for the cost of

5 demolition, remediation, and clearing of the Homan’s Building and parcel, as provided in Section 2.1. 3.3 The MBTA shall be solely responsible for remediating the Permanent Volumetric, Permanent and Temporary Easement Areas, including remediation of any environmental conditions discovered or released as a result of MBTA or its contractors’ activities on such Easement Areas, to the level required under G.L. c. 21E and the Massachusetts Contingency Plan at 310 CMR 40.00 et seq. for their intended use for transportation purposes. The MBTA shall be solely responsible for remediating the Skilton Temporary Easement Area to the level required under G.L. c. 21E and the Massachusetts Contingency Plan at 310 CMR 40.00 et seq. for its intended use as a park for dogs and people. The MBTA shall be solely responsible for the costs of any such remediation and shall not look to COS for payment of or participation in such site assessment, cleanup, and remediation costs. The MBTA shall not be responsible for environmental remediation of any land beyond the Easement Areas, except to the extent that the activities of MBTA or its contractors on the Easement Areas have resulted in release of hazardous material or created an environmental condition requiring response and/or remediation on land beyond the Easement Areas. ARTICLE IV: RESERVATION OF RIGHTS 4.1 COS reserves the right to include the Permanent Volumetric, Permanent and Temporary Easement Areas within the boundaries of any Master Plan, District Improvement Financing (“DIF”) District, Urban Renewal District, Infrastructure Incentive Investment (“I-Cubed”) Project, and/or such other district, program, project, plan, or other mechanism as may now or in the future enable COS, in its sole judgment, to incentivize development in the Gilman Square and Lowell Street/Magoun Square neighborhood of Somerville. COS reserves the right to offer the Temporary Easement Area for development during the use and occupancy of the site by the MBTA and/or its contractor. The Temporary Easement Area shall not be available for development until the Termination Date. Certain actions and obligations of COS hereunder may be subject to a vote of the Board of Aldermen and as such are expressly conditioned upon such approval. 4.2 COS reserves development air rights over the Permanent Volumetric Easement Areas including, without limitation, development air rights over any part of the Station structure and/or appurtenant facilities located within the Permanent Volumetric or Permanent Easement Areas. Unless otherwise agreed by the parties in writing, any development above the station shall not be supported by or modify the station structure. ARTICLE V: DEFAULT/NOTICE In the event of any default hereunder, written notice of shall be served on the defaulting Party by certified or registered mail, postage prepaid, return receipt requested, or by Express Mail or FedEx or some other nationally recognized overnight delivery method with a tracking receipt, addressed to the Party to whom it is to be given or served at its address as follows:

6 If to the MBTA: Mark E. Boyle Assistant General Manager for Real Estate and Asset Development MBTA 10 Park Plaza Boston, MA 02116 with a copy to: General Counsel MassDOT and MBTA If to COS: Joseph A. Curtatone, Mayor City Hall – Mayor’s Office 93 Highland Avenue Somerville, MA 02143 with a copy to: Francis X. Wright, Jr., City Solicitor City Hall – Law Department 93 Highland Avenue Somerville, MA 02143 ARTICLE VI: GENERAL PROVISIONS 6.1 Amendments in Writing. No change to this MOA shall be effective unless it is in writing and signed by all Parties. 6.2 Cooperation. Each Party shall cooperate in furnishing information and documents to the other Parties, including without limitation, execution of all necessary and/or appropriate documents to accomplish such Party’s respective obligations as stated in this MOA. 6.3 Successors and Assigns. This MOA shall be binding upon and inure to the benefit of the Parties hereto and their respective successors and assigns. 6.4 Non-Discrimination. No Party shall discriminate against any employee or applicant for employment because of race, religion, creed, ancestry, color, sex, sexual orientation, gender identity, genetic information, age, disability, national origin, or military veteran status. 6.5 Members of Congress. No member of or delegate to the Congress of the United States shall be admitted to any share or part of this MOA or to any benefit arising therefrom. 6.6 Conflict of Interest. No member, officer, or employee of the MBTA or COS during his/her tenure or for one year thereafter shall have any interest, direct or indirect, in this MOA. 6.7 Indemnification. Each Party shall indemnify, defend and save harmless the other Parties and all their officers, agents, and employees against all suits, claims, or liability

7 of every name and nature for or due to any injuries to persons or damage to property arising out of or in consequence of the acts or omissions of such Party, its employees, consultants, representatives, agents or contractors in the performance of work performed or services rendered under or relating to the terms of this MOA or failure to comply with the terms and conditions of this MOA. 6.8 Governing Law. This MOA shall be governed by and interpreted in accordance with the laws of the Commonwealth of Massachusetts. 6.9 Counterparts. This MOA may be executed in multiple counterparts, each of which shall be deemed an original. 6.10 Exhibits. Exhibits A-D attached hereto are hereby incorporated as part of the MOA. SIGNATURE PAGES FOLLOW

8 Witness our hands and seals on the day and year first written above. Approved as to form: __________________________ Paige Scott Reed General Counsel MassDOT and MBTA MASSACHUSETTS BAY TRANSPORTATION AUTHORITY _______________________________ Beverly A. Scott, Ph.D. General Manager and Rail & Transit Administrator

9 Witness our hands and seals on the day and year first written above. Approved as to form: _________________________________ Francis X. Wright, Jr., City Solicitor CITY OF SOMERVILLE _________________________ Joseph A. Curtatone Mayor

10 EXHIBIT A

11 EXHIBIT B

12 EXHIBIT C

13 EXHIBIT D