Print Print
  • Acts
  • 1999
  • Chapter 121 AN ACT AUTHORIZING THE DIVISION OF CAPITAL ASSET MANAGEMENT AND MAINTENANCE TO CONVEY PERMANENT AND TEMPORARY EASEMENTS ON STATE PROPERTY IN THE CITY OF BOSTON TO EMERSON COLLEGE.

Be it enacted by the Senate and House of Representatives in General Court assembled, and by the authority of the same, as follows:


SECTION 1. The commissioner of the division of capital asset management and maintenance is hereby authorized, notwithstanding the provisions of sections 40E to 40I, inclusive, of chapter 7 of the General Lawsto convey to Emerson College, a nonprofit educational institution, the permanent and temporary easements burdening certain property owned by the commonwealth as more particularly described in this act. Said easements shall be used for educational purposes and shall be subject to such conditions, as are more particularly set forth in this act and to such further terms and conditions as the commissioner may prescribe.

The property upon which the commissioner is hereby authorized to convey permanent easements contains approximately 7,000 square feet, abutting the state transportation building located at Park Plaza in the city of Boston and is located off the center line of Allen's Alley, a private way, bounded as follows:

NORTHERLY by the center line of Allen's Alley;

EASTERLY by other land of Emerson College; and

SOUTHERLY and WESTERLY by other land of the commonwealth of Massachusetts; and such other property of the commonwealth as is described in section 2.

The property upon which the commissioner is hereby authorized to convey temporary easements shall be more particularly shown on a survey to be prepared by the college at its expense and approved by the commissioner.

SECTION 2. The permanent easements may permit the college to construct within the easement areas improvements approved by the commissioner of capital asset management and maintenance and acceptable to any master tenant in the state transportation building, including piles and footings, a building and appurtenant facilities and utilities, and structures connecting the new building to the college's building at 120 Boylston street in the city of Boston. The building may contain 13 levels, two below grade, none at grade, and 11 above grade beginning at an elevation above grade as the commissioner may approve. The structures connecting the new building to the college's building at 120 Boylston street may be constructed both below grade and above grade having such elevations as the commissioner may approve. The permanent easements may allow the college to construct, at grade, a covered loading dock, loading and service facilities and service circulation for use by the state transportation building, other property of the college known as the Emerson Majestic Theatre, located at 219 Tremont street in the city of Boston and the new building and, at the northeasterly most portion of the easement area, at grade, an elevator core and stairs to serve the new building. The new building may be attached to and integrated with the theatre and the college's building at 120 Boylston street.

The permanent easements may include easements through the state transportation building for emergency access onto Tremont street and easements for encroachments and support burdening the remainder of the state transportation building property, provided that such access, encroachments and support shall not adversely impact the structure, functions, operation or value of the state transportation building. The permanent easements also may include easements for access, utilities and drainage over other property of the commonwealth.

SECTION 3. The temporary easements authorized to be conveyed to the college may consist of those rights burdening the remainder of the state transportation building and such other property of the commonwealth as the commissioner of capital asset management and maintenance, in consultation with any master tenant, may determine are acceptable and are reasonably necessary to enable the college to realize the benefits of the permanent easements and to enable the college to perform certain work on the state transportation building and other commonwealth property in connection therewith, provided that such temporary easements shall not adversely impact the structure, functions, operation or value of the state transportation building or any other commonwealth property.

SECTION 4. The commissioner of capital asset management and maintenance is hereby authorized, notwithstanding any general or special laws to the contrary, receive such easements and other rights, including rights burdening the building and other improvements of the college in the easement area, as may be necessary in the commissioner's discretion to protect the interests of the commonwealth, any master tenant and the condition, operation, function and value of the state transportation building and other property of the commonwealth.

SECTION 5. The college shall pay the full and fair market value of the easements, as determined by the commissioner of capital asset management and maintenance, based upon an independent appraisal prepared for the division of capital asset management and maintenance and paid for by the college.

The inspector general shall review and approve said appraisal and the review shall include a review of methodology utilized for said appraisal. Said inspector general shall prepare a report for his review and file the report with the commissioner for submission to the house and senate committees on ways and means and chairmen of the joint committee on state administration in accordance with section 12.

The easements authorized to be conveyed under this act shall be subject to and include the requirements set forth in this act and the following additional terms: (a) the college shall coordinate any work performed by the college in the easement areas, Allen's Alley, at the state transportation building or other property of the commonwealth, with and to the satisfaction of said division of capital asset management and maintenance and any master tenant of the state transportation building in order to ensure that the work does not interfere with the condition, operation, value or function of the state transportation building, such other property, or Allen's Alley all subject to clause (k); (b) the college shall provide to said division of capital asset management and maintenance payment and performance bonds issued by sureties authorized to issue bonds in the commonwealth, covering all of the work by or on behalf of the college in the easement areas, Allen's Alley at the state transportation building and at any other property of the commonwealth; (c) the college shall carry casualty and liability insurance to cover loss or damage to persons, property, Allen's Alley, the easement areas, the state transportation building and other property of the commonwealth which may occur during construction, operation and maintenance of the building and other improvements, repairs and replacements in the easement areas and while work at the state transportation building or other property of the commonwealth is being performed, with all such insurance to be in such form, in such amounts and with such companies licensed to issue insurance policies in the commonwealth as the commissioner may require; (d) the college shall name the commonwealth, said division of capital asset management and maintenance and any master tenant as additionally insured parties on all such policies of insurance; (e) notwithstanding any oversight, review or approval of plans, specifications, design, construction or other work by the commonwealth or any master tenant in connection with improvements, alterations, or other work and in connection with the existence, operation, maintenance, repair and replacement of improvements in the easement areas, state transportation building or other property of the commonwealth by or on behalf of the college, the college shall be solely liable for and shall indemnify, defend and hold harmless the commonwealth, the division of capital asset management and maintenance and master tenant with respect to all liabilities, including without limitation all liabilities, in tort, in contract, at law, and in equity, arising from (i) any design, construction and other work performed in the easement areas, Allen's Alley, the state transportation building or other property of the commonwealth, (ii) the existence, construction, operation, maintenance, repair and replacements of the building or other improvements at the state transportation building, other property of the commonwealth, Allen's Alley or in the easement areas; and (iii) the college's exercise of the permanent or temporary easements granted under this act; (f) the college shall build the building and undertake the work at the state transportation building and other improvements only in accordance with plans and specifications and a construction schedule approved by the commissioner and any master tenant and shall diligently and continuously pursue any construction or other work to completion once commenced; (g) if following a casualty, the college intends to restore the building and other improvements in the easement areas, that it do so only in accordance with plans and specifications and a construction schedule approved by the commissioner and shall diligently pursue such restoration to completion once commenced and if, following a casualty, the college does not intend to restore the building and other improvements in the easement areas, the college shall remove the building and all of the improvements made by or on behalf of the college from the easement areas and restore the same to good condition, provided that the college shall restore the loading and service facilities and access to and from Allen's Alley in any event promptly upon the occurrence of a casualty; (h) during construction of the building and any other improvements, there will be service access and loading available to the state transportation building and all other affected property of the commonwealth, satisfactory to the commissioner and master tenant and to that end, no construction of the building or any other improvements by or on behalf of the college will take place from the time construction is started on the premises numbered 144 to 150 Boylston street in the city of Boston through the date there is substantial completion of such construction; (i) the architects, surveyors and contractors to be used by the college for construction of the building or other improvements in the easement areas, Allen's Alley and work at the state transportation building will be subject to the prior approvals of the commissioner and any master tenant, and all construction and work done by the college will be done in good and workmanlike manner in compliance with all applicable laws and shall in no way adversely affect the function, operation, condition or value of the state transportation building or other property of the commonwealth; (j) the structural integrity of the state transportation building, other property of the commonwealth and Allen's Alley, both during and after construction all subject to clause (k), shall not be adversely affected; (k) that any plan for construction involving Allen's Alley, the state transportation building or other property of the commonwealth, shall be subject to the approval of the commissioner and master tenant; (l) the college shall pay for all labor and materials properly performed and supplied in a timely manner; (m) the college may only use the easement areas and the building and other improvements located therein for educational uses and uses accessory thereto; (n) the commonwealth shall have the right to exercise self-help rights to cure any defaults of the terms and conditions of the easements or related agreements by the college and to be promptly reimbursed by the college for all costs and expenses incurred by the commonwealth in exercising such rights; (o) the college shall be solely responsible for all costs and expenses to construct, repair, replace, operate and manage the loading dock, service and loading facilities and service circulation in the easement areas and in Allen's Alley, all of which loading dock, service and loading facilities shall be owned by the commonwealth and shall be shared with the college and any master tenant, subject to the terms and conditions imposed by the commissioner in the easements authorized by this act and subject to such additional terms and conditions imposed by any master tenant in connection with its master lease; and (p) such additional provisions as the commissioner may impose in consultation with any master tenant.

SECTION 6. The commissioner of capital asset management and maintenance is hereby authorized, notwithstanding any general or special laws to the contrary, contract with the college and its designers and contractors, to undertake any design, construction, alterations to and other work on, the state transportation building, including its systems, structure and appurtenances and other property of the commonwealth, as may be necessary to effectuate the purposes of this act; provided that all such alterations and other work shall be paid for by the college, shall be acceptable to said commissioner, and shall not adversely affect the operation, condition or value of the state transportation building, such other property of the commonwealth, the easement areas or Allen's Alley. The easements authorized by this act shall provide that, notwithstanding any contracting by or review, approvals or oversight of plans, specifications, design or construction by said division of capital asset management and maintenance, other agencies of the commonwealth or any master tenant, the college shall be solely responsible for all liabilities associated with the design and construction of such alterations to and other work on, the state transportation building, other property of the commonwealth, Allen's Alley and the easement areas, and for ensuring that there is no adverse effect on the function, operation, condition or value of the state transportation building, other property of the commonwealth, Allen's Alley, the easement areas and the master tenant's interests in the state transportation building, such other property, the easement areas and Allen's Alley, as a result of the alterations and work.

SECTION 7. The college shall be solely responsible for all costs of the transactions, work, improvements and alterations authorized by this act, including without limitation: the reasonable costs of all consultants, attorneys and investigations of the division of capital asset management and maintenance and the master tenant in connection with said transactions and with any peer review and oversight of the college's design, construction and other work; the cost of all work in the easement areas, Allen's Alley, the state transportation building, and any other property of the commonwealth under this act; the cost of all operation, maintenance, repair, restoration and taxes associated with the building, the service areas, other improvements or alterations made by or on behalf of the college; and, the cost of all appraisals and surveys.

SECTION 8. The easements authorized by this act may be pledged, mortgaged or conveyed by the college in any manner the college deems necessary, subject to the provisions of this act, to the uses authorized by this act and to the terms and conditions imposed by the commissioner. If any easements authorized to be conveyed by this section are conveyed to any entity other than a nonprofit educational institution or the mortgage lender that finances the building and improvements or are conveyed without a use restriction allowing only the educational uses authorized by this act, then, upon notice by the commissioner of the division of capital asset management and maintenance, the easements together with all buildings and improvements located thereon shall revert to the commonwealth subject to such terms and conditions as the commissioner may specify.

SECTION 9. The master tenant shall have the right to approve the college's use of the easement areas, the college's use, operation and rights in the state transportation building, the college's construction and alterations to the loading dock and service and loading facilities available to the state transportation building and any other improvements and work associated with the building, Allen's Alley, the easement areas, and the state transportation building by or on behalf of the college and any agreements creating or conveying the temporary or permanent easements relating thereto.

SECTION 10. The obligations and provisions of this act shall bind the college and its successors and assigns.

SECTION 11. Nothing in this act shall be interpreted as limiting or otherwise affecting any provision of chapter 240 of the acts of 1984.

SECTION 12. The commissioner of capital asset management and maintenance shall, 30 days before the execution of any agreement authorized by this act or any subsequent amendment thereof, submit the agreement or amendment and a report thereon to the inspector general for his review and comment. Said inspector general shall issue his review and comment within 15 days of receipt of any agreement or amendment. Said commissioner shall submit the agreement and any subsequent amendments thereof, the reports and the comments of said inspector general, if any, to the house and senate committees on ways and means and the chairmen of the joint committee on state administration at least 15 days prior to the execution.

Approved November 5, 1999.