Manzi Bonanno & Bowers Hon. Mary McCauley Manzi (Rel.) Vincent C. Manzi, Jr. -----ATTORNEYS AT LAW--- 280 Merrimack Street, Suite B Methuen, Massachusetts 01844 tel: 978.686.9000 fax: 978.794.9628 Real Estate fax: 888.655.3060 Maria Bonanno James M. Bowers VIAFEDEX O/Coun.•el Charles Scott Nierman Rachel L. Judkins Alex Moskovsky Medical Use of Marijuana Program RMD Applications May3,2017 Parafe(al Jennifer M. Paulina 'f&;v;eras t ·- l- :i\ 99 Chauncy Street, n'h floor Boston, MA 02111 RE: BeWell Organic Medicine, Inc. RMD Application #2 of 2 Dear Sir/Madam: " Kindly accept the following response, submitted on behalf of Be Well Organic Medicine, Inc., in response to the Request for Information forwarded by way of correspondence dated February 22, 2017. Please note that, on March 20, 2017, the City of Methuen, by vote of its City Council, rescinded the Letters of Non-Opposition previously issued to applicants seeking to open dispensaries within Methuen, as the city council seeks to revisit issues relative to the RMD zoning ordinance previously adopted. The following responses to the February 22"d letter are provided: Request No. 1. New page S of the Siting Profile, with initials as the bottom of the page, is provided. Request No. 2. The Quitclaim deed, in which Chart Holdings, LLC, obtained title to the property located at 92 Bolt Street, Lowell, MA, is provided. The deed is recorded at Book 30416, Page 154, of the Middlesex North Registry of Deeds; lease between Chart Holdings, LLC, and Be Well Organic Medicine, Inc., is provided. Request No. 3. A new Sublease is provided, between Chart Holdings, LLC (as sublessor), and BeWell Organic Medicine, Inc. (as sublessee). The terms of sublease, relative to costs associated with the base rent, are now identical to the terms of the lease between ADG 100 Griffin Brook Drive LLC (as lessor) and Chart Holdings, LLC (as lessee). Consequently, an opinion from an independent appraiser is not required. ,. '
Transcript
Manzi Bonanno & Bowers
Hon. Mary McCauley Manzi (Rel.) Vincent C. Manzi, Jr.
-----ATTORNEYS AT LAW---
280 Merrimack Street, Suite B Methuen, Massachusetts 01844
tel: 978.686.9000 fax: 978.794.9628
Real Estate fax: 888.655.3060
Maria Bonanno James M. Bowers
VIAFEDEX
O/Coun.•el Charles Scott Nierman
Rachel L. Judkins Alex Moskovsky
Medical Use of Marijuana Program RMD Applications
May3,2017 Parafe(al
Jennifer M. ~P:i,!an Paulina 'f&;v;eras
i.~~'. t ·- l- :i\
99 Chauncy Street, n'h floor Boston, MA 02111
RE: BeWell Organic Medicine, Inc. RMD Application #2 of 2
Dear Sir/Madam:
"
Kindly accept the following response, submitted on behalf of Be Well Organic Medicine, Inc., in response to the Request for Information forwarded by way of correspondence dated February 22, 2017.
Please note that, on March 20, 2017, the City of Methuen, by vote of its City Council, rescinded the Letters of Non-Opposition previously issued to applicants seeking to open dispensaries within Methuen, as the city council seeks to revisit issues relative to the RMD zoning ordinance previously adopted.
The following responses to the February 22"d letter are provided:
Request No. 1. New page S of the Siting Profile, with initials as the bottom of the page, is provided.
Request No. 2. The Quitclaim deed, in which Chart Holdings, LLC, obtained title to the property located at 92 Bolt Street, Lowell, MA, is provided. The deed is recorded at Book 30416, Page 154, of the Middlesex North Registry of Deeds; lease between Chart Holdings, LLC, and Be Well Organic Medicine, Inc., is provided.
Request No. 3. A new Sublease is provided, between Chart Holdings, LLC (as sublessor), and BeWell Organic Medicine, Inc. (as sublessee). The terms of sublease, relative to costs associated with the base rent, are now identical to the terms of the lease between ADG 100 Griffin Brook Drive LLC (as lessor) and Chart Holdings, LLC (as lessee). Consequently, an opinion from an independent appraiser is not required.
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Medical Use of Marijuana Program RMD Applications Page2
Request No. 4. As stated above, the applicant does not have a new Letter of NonOpposition from the City of Methuen, as the city council voted to rescind its letters of nonopposition, as it re-visits issues related to its RMD zoning ordinance. Be Well Organic Medicine, Inc., continues to pursue the issuance of a new letter of non-opposition from the City of Methuen.
Request No. 5. Section D, Local Compliance). A revised Section Dis provided.
[Note: The applicant has entered into a sublease agreement with Chart Holdings, LLC, which has leased the property located at 100 Griffin Brook Drive, Methuen, MA. The location meets all of the requirements of 105 CMR 725.110(A)(14). It is the applicant's position that the location also meets the requirements of the City of Methuen zoning ordinance, and had submitted a request for a special permit for the location. However, that applicant has since been informed by the city's planning department that the location is located within 500 feet of a conservancy district (although the city's online zoning map indicates otherwise), which is not allowed by city ordinance). The applicant continues to attempt to resolve this issue with the City of Methuen.]
Request No. 6. The applicant has previously provided a letter from Shaun Shanahan, Building Commissioner for the City of Lowell, stating that the proposed cultivation center meets all requirements of 105 CMR 725.110(A)(14), and that the City of Lowell has not further restricted the states' CMR regulations relative to the locations of RMD facilities. The proposed cultivation center is located in an industrial zone. According to the City of Lowell zoning ordinance, an RMD is allowed by right in an industrial zone. Mr. Shanahan's letter is enclosed.
In follow-up to DPH's additional inquiry, attached is a letter from R. Eric Slagle, the Director of the Division of Development Services for the Department of Planning and Development, City of Lowell. Mr. Slagle states that the City of Lowell has not adopted zoning specific to medical marijuana, and that marijuana cultivation is treated as a manufacturing use pursuant to Sec. 12.9(g) of the zoning ordinance. The use is allowed as a matter of right within the Light Industrial (LI) zoning district, where 92 Bolt Street, Lowell, MA, is located.
Request No. 7. A revised Section C(l2) to the Management and Operations Profile, together with a legal opinion, is provided.
Medical Use of Marijuana Program RMD Applications Page3
Thank you for your assistance. Please telephone me should you have any questions.
JMB/pt Enclosures
Verytrulyy~
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Application _2_ of __ 2_ Applicant Non-Profit Corporation Be Well Organic Medicine, Inc.
SECTION B: PROPOSED LOCATION(S)
Provide the physical address of the proposed dispensary site and the physical address of the additonal location, if any, where marijuana for medical use will be cultivated or processed.
Attach supporting documents as evidence of interest in the property, by location. Interest may be demonstrated by (a) a clear legal title to the proposed site; (b) an option to purchase the proposed site; (c) a lease; (d) a legally enforceable agreement to give such title under (a) or (b), or such lease under (c), in the event that Department determines that the applicant qualifies for registration as a RMD; or (e) evidence of binding permission to use the premises.
Location Full Address County
100 Griffin Park Drive Essex
l Dispensing Methuen, MA 01844
92 Bolt Street Middlesex
2 Cultivation Lowell, MA
92 Bolt Street Middlesex
3 Processing Lowell, MA
E!"Check here if the applicant would consider a location other than the county or physical address provided within this application.
Information on this ·page has been reviewed by the applicant, and where provided by the applicant, is accurate and complete, as indicated by the initials of the authorized signatory here: CMS
Siting Profile - Page 5
NO. 2
Middlesex North Registry of Deeds
Electronically Recorded Document
This is the first page of this document - Do not remove
Recording Information
Document Number Document Type Recorded Date Recorded Time
; 42850 :DEED ; September 08, 2016 ; 11 ;07:26 AM
Recorded Book and Paqe ; 30416 / 154 Number of Paqes(includinq cover sheet) ; 5 Receipt Number ; 747976 Recording Fee (including excise) ; $13,805.00
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MASSACHUSETTS EXCISE TAX Middlesex North ROD #14 001 Date; 09/08/2016 11 ;07 AM Ctrl# 068738 01521 Doc# 00042850 Fee; $13,680.00 cons; $3,000,000.00 ************************************************
Middlesex North Registry of Deeds Richard P. Howe Jr., Register
360 Gorham Street Lowell, Massachusetts 01852
978/322-9000 www.lowelldeeds.com
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QUITCLAIM DEED
I, Alfred G. Maroun, being unmarried, of Lowell, Massachusetts, for consideration paid of ** THREE MILLION and 00/100 Dollars ($3,000,000.00), hereby grant to~kk~
~,a Massachusetts limited liability company, having an address of280B Merrimack Street, Methuen, MA 01844, with quitclaims covenants, *CHART HOLDINGS, LLC
All that certain real property located in the County of Middlesex, Commonwealth of Massachusetts, more fully described on Exhibit "A" attached hereto and made a part hereof; subject, however, to those matters set forth on Exhibit "B" attached hereto and made a part thereof.
IN WITNESS WHEREOF, the said Grantor has signed, acknowledged and delivered this Quitclaim Deed the U day of August, 2016.
STATE OF NEW JERSEY
~ County of AJ. \c,'11"<:'.-N
"' On this /J day of August, 2016 before me, the undersigned notary public, personally appeared ALFRED G. MAROUN, who proved to me through satisfactory evidence of identification, which was c:ll-
' photographic identification with sign)lture issued by a federal or state goverrunent agency, JlrOath or affirmation of a credible witness, ill!' personal knowledge of the undersigned, to be the person whose name is signed on the preceding or attached document, and acknowledged to me that he signed it voluntarily for its stated PUI])OSe.
That certain parcel of land, with any buildings and improvements thereon, known as Lot 3, containing 124,643 square feet located on Bolt Street, Lowell, County of Middlesex, Commonwealth of Massachusetts, being shown as Lot 3 on plan entitled "Plan of Land Lowell, Massachusetts, Lots 3 & 4/Bolt Street, Lowell, Massachusetts", Scale l "=40', dated December 21, 2000, prepared by Dana F. Perkins, Inc., Consulting Engineers & Land Surveyors, prepared for Alfred G. Maroun, which plan was recorded with said Middlesex County Northern District Registry of Deeds in Plan Book 212, Plan I 35, on December 2, 2003.
Meaning and intending to convey a portion of the premises conveyed to the Grantor herein by deed dated January 23, 1995 and recorded with said Deeds in Book 7370, Page 94.
EXHIBITB PERMITTED EXCEPTIONS
I. Acts of Grantee, and those claiming by, through and under Grantee.
2. General and special taxes and assessments not yet delinquent.
3. Zoning, building and other governmental and quasi-governmental laws, codes and regulations.
4. Any adverse claim to any portion of the Property which has been created by artificial means or has accreted to any such portion so created and riparian rights, if any. .
5. Covenants, conditions, restrictions, and private or public utility easements ofrecord together with easements or claims of easements not shown by the public records.
6. Encroachments, overlaps, boundary line disputes, or other matters which would be disclosed by an accurate survey or inspection of the property.
7. Rights, easements, restrictions and obligations, reservations as set forth in a deed from the Boston and Maine Railroad dated September 26, 1980 and recorded in Book 1491, Page 181.
8. Rights of others in and to Bolt street.
9. Easements to Merrimack-Essex Electric Co. and N.E. Telephone and Telegraph Co. dated July 27, 1961 recorded in Book 1522, Page 275.
I 0. Easement to Massachusetts Electric Company and New England Telephone and Telegraph Co. dated July 7, 1969 and recorded with said Deeds in Book 1892, Page 701.
11. Rights of drainage and sewerage in favor of the Lowell Bleachery as set forth in deed dated July 14, 1891 and recorded in Book 255, Page 486 and also recorded with Middlesex South District Registry of Deeds in Book 40, Page 14 and Book 46, Page 313.
12. Rights contained in a deed recorded in Book 146, Page 365.
13. Conditions, rights and restrictions as set forth in dee-0 dated October 30, 1860 and recorded in Book 26, Page 100.
14. Rights in common with others to use for driveway purposes.
I 5. Rights in common with others to use for driveway purposes the strip of land marked "Dirt Driveway" as shown on a plan entitled "Land in Lowell, MA, Boston and Maine Railroad to J.P. Realty Trust" (Schoefield Bros., August, 1960) recorded with said Deeds in Plan Book 93, Plan 119 on September 30, 1960 and as set forth in the lnstroment recorded with said Deeds in Book 1367, Page 392.
J 6. The following matters are shown on a survey entitled "Site Plan of Land" in Lowell, MA dated September 22, 1987, updated November 21, 1994 and a Surveyor's Report dated December 20, 1994, by Dana F. Perkins;
a. Rights of others in and to a graveled way running through the Property;
b. Encroachment of chain link fence and parking area; and
c. Overhead wires traversing the Property.
l 7. Boiler Agreement dated September 25, 1987 recorded on September 28, 1987 as Instrument No. 57098.
18. Access Easement Agreement dated September 25, 1987 recorded on ·September 28, 1987 as Instrument No. 57099
19. Easements recorded in Book 989, Page 18, and in Book 1198, Page 564.
END.
COMMERCIAL LEASE
1. PARTIES. Chart Holdings, LLC, LESSOR, which expression shall include heirs; successors, and assigns where 1he context so admits, does hereby lease to Be Well Organic Medicine, Inc., a duly·
. established non-profit corporation organized and existing under the laws of the Connnonwealth of Massachusetts, LESSEE, and 1he LESSEE hereby leases 1he following described premises:
2. PREMISES. Twenty 1housand (20,000) square feet of space, located at 92 Bolt Street, Lowell, Middlesex County, Massachusetts, together wi1h the right to use in connnon, wi1h o1hers entitled 1hereto, the hallways, stailways, and elevators, necessary for access to said leased premises, and lavatories nearest 1hereto.
3. TERM. The term ofthis lease shall be for a period of five (5) years, commencing on Januai-y 1, 2017 and ending on December 31, 2021.
Lessor and Lessee understand 1hat permits for the operation of a medical marijuana dispensary or cultivation center are subject to approval from 1he City of Lowell and 1he Commonweal1h of Massachusetts. This lease is contingent upon 1he Lessee obtaiillng 1he necessai·y approvals, and as such, an extension of time for the beginning of1he lease term may be extended, upon proof by 1he Lessee to the Lessor that diligent efforts are being made to acquire the necessary approvals.
Option to Renew: The Lessee shall be granted two (2) Options to Renew, for periods of five (5) years each, connnencing at the expiration of the initial, or the first extended, lease term, whichever is applicable. The Lessee shall notify the Lessor in writing at least ninety (90) days prior to the expiration of the initial lease term, or 1he extended lease term, of its intent to exercise the Option( s) to Renew.
4. RENT. The LESSEE shall pay to the LESSOR fixed rent atthe rate of$26.50 per square foot, or one hundred tWenty thousand ($530,000.00) dollars per year, payable in month installments of forty-four thousand, one hundred sixty-six dollars and 67/100 ($44,166.67) in advance in monthly installments of subject to proration in the case of any partial calendar month. All rent shall be payable without offset or deduction.
5. SECURITY DEPOSIT. Upon the execution of this lease, the LESSEE shall pay to the LESSOR the amount often thousand ($10,000.00) dollars which shall be held as a security for the LESSEE's performance as herein provided and refunded to the LESSEE at the end of this lease, without interest, subject to 1he LESSEE's satisfactory compliance with the conditions hereof.
6. RENT ADJUSTMENT.
TAX ESCALATION
lf in any tax year connnencing wi1h the fiscal year 2017 the real estate taxes on the land and buildings, of which the leased premises are a part, are in excess of the ai:nount of the real estate taxes thereon for the fiscal year (hereinafter called the "Base Year'), LESSEE will pay to LESSOR as additional rent hereunder, when and as designated by notice in writing by LESSOR, the per cent of such excess, in proportionate that share of leased space occupied by the Lessee, to the that may occur in each year of the term of this lease or any extension or renewal thereof and proportionately for any part of a fiscal year. If the LESSOR obtains an abatement of any such excess real estate tax, a proportionate share of such abatement, less the reasonable fees and costs incurred in obtaiillng the same, if any, shall be refunded to the LESSEE.. .
7. UTILITIES.
The LESSEE shall pay, as they become due, all bills for electricity and other utilities (whether they are used for furnishing heat or other purposes) that are furnished to the leased premises and presently separately metered, and all bills for fuel furnished to a separate tank servicing the leased premises exclusively. The LESSOR agrees to provide all other utility service and to furnish reasonably hot and cold water and reasonable heat and air conditioning (except to the extent that the same are furnished through separately metered utilities or separate fuel tanks as sei forth above) to the leased premises, the hallways, stairways, elevators, and lavatories during nonnal business hours on regular business days of the heating and air conditioning seasons of each year, to furnish elevator service and to light passageways and stairways during business hours, and to furnish such cleaning service as is customary in similar buildings in said city or town, all subject to inte1ruption due to any accident, to the making of repairs, alterations, or improvements, to labor difficulties, to trouble in obtaining fuel, electricity, service, or supplies from the sources from which they are usually obtained for said building, or to any cause beyond the LESSOR's control.
·LESSOR shall have no obligation to provide utilities or equipment other than the utilities and equipment within the premises as of the commencement date of this lease. In the event LESSEE requires additional utilities or equipment. the installation and maintenance thereof shall be the LESSEE's sole obligation, provided that such installation shall be subject to the written consent of the LESSOR.
8. USE OF LEASED PREMISES.
The LESSEE shall use the leased premises for the purposes of the cultivation, processing, and/or dispensing of medical marijuana.
9. COMPLIANCE WITH LAWS.
The LESSEE acknowledges that no trade or occupation shall be conducted in the leased remises or use made thereof which will be unlawful, improper, noisy or offensive, or contrary to any law or any municipal by-law or ordinance in force in the city or town in which the premises are situated. Without limiting the generality of the foregoing (a) the LESSEE shall not bring or permit to be brought or kept in or on the leased premises or elsewhere on the LESSOR's property any hazardous, toxic, inflammable, combustible or explosive fluid, material, chemical or substance, including without limitation any item defined as hazardous pursuant to Chapter 21E of the Massachusetts General Laws; and (b) the LESSEE shall be responsible for compliance with requirements imposed by the Americans with Disabilities Act relative to the layout of the leased premises and any work performed by the LESSEE therein.
10. FIRE INSURANCE.
The LESSEE shall not permit any use of the leased premises which will make voidable any insurance on the property of which the leased premises are a part, or on the contents of said property or which shall be contrary to any law or regulation from time to time established by
the New England Fire Insurance Rating Association, or .any similar body succeeding to its powers. The LESSEE shall on demand reimbmse the.LESSOR, and all other tenants, all extra insurance premiums caused by the LESSEE's use of the premises. ·
11. MAINTENANCE.
A. LESSEE'S OBLIGATIONS.
The LESSEE agrees to maintain the leased premises in good condition, damage by frre and other casualty only excepte.d, and whenever necessary, to replace plate glass and other glass therein, acknowledging that the leased premises are now in good order and the glass whole. The LESSEE shall not permit the leased premises to be overloaded, damaged, stripped, or defaced,. nor suffer any waste. LESSEE shall obtain written consent of LESSOR before erecting any sign on the premises.
B. LESSOR'S OBLIGATIONS.
The LESSOR agrees to maintain the structme of the building of which the leased premises are a part in the same condition as it is at the commencement of the term or as it may be put in during the term of this lease, reasonable wear and tear, damage by fire and other casualty only excepted, unless such maintenance is required because of the LESSEE or those for whose conduct the LESSEE is legally responsible.
12. ALTERATIONS-ADDITIONS.
The LESSEE shall not make structural alterations or additions to the leased premises, but may make non-structural alterations provided the LESSOR consents thereto in writing, which consent shall not be unreasonably withheld or delayed. All such allowed alterations shall be at LESSEE's expense and shall be in quality at least equal to the present construction. LESSEE shall not permit any mechanics liens, or similar liens, to remain upon the leased premises for labor and material furnished to LESSEE or claimed to have been furnished to LESSEE in connection with work of any character performed or claimed to have been performed at the direction of LES SEE and shall cause any such lien to be released of record forth-with without cost to LESSOR. Any alterations or improvements made by the LESSEE shall become the property of the LESSOR at the termination of occupancy as provided herein.
13. ASSIGNMENT-SUBLEASING.
The LESSEE shall not assign or sublet the whole or any part of the leased premises without LESSO R's prior written consent. Notwithstanding such consent, LESSEE shall remain liable to LESSOR for the payment of all rent and for the full performance of the covenants and conditions of this lease.
14. SUBORDINATION.
This lease shalfbe subject and subordinate to any and all m01igages, deeds of trust and other instruments in the nature of a mortgage, now or at any time hereafter, a lien or liens on the property of which the leased premises are a part and the LESSEE shall, when requested, promptly execute and deliver such written instruments as shall be necessary to show the subordination of this lease to said mortgages, deeds of trust or other such instruments in the nature of a mortgage.
15. LESSOR'S ACCESS.
The LESSOR or agents of the LESSOR may, at reasonable times, enter to view the leased premises and may remove placards and signs not approved and affixed as herein provided, and make repairs and alterations as LESSOR should elect to do and may show the leased premises to others, and at any time within three (3) months before the expiration of the tenn, may affix to any suitable part of the leased premises a notice for leasing or selling the leased premises or prope1iy of which the leased premises are a part and keep the same so affixed without hindrance or molestation.
16. INDEMNIFICATION AND LIABILITY.
The LESSEE shall save the LESSOR harmless from all loss and damage occasioned by anything occurring on the leased premises unless caused by the negligence or misconduct of the LESSOR, and from all loss and damage wherever occurring occasioned by any omission, fault, neglect or other misconduct of the LESSEE. The removal of snow and ice from the sidewalks bordering upon the leased premises shall be the Lessor's responsibility.
17. LESSEE'S LIABILITY INSURANCE.
The LESSEE shall maintain with respect to the leased premises and the property of which the leased premises are a part comprehensive publiC liability · insurance in the amount of $1,000.000.00 with property damage insurance in limits of $1,000.000.00 in responsible companies qualified to do business in Massachusetts and in good standing therein insuring the LESSOR as well as LESSEE against injury to persons or damage to property as provided. The LESSEE shall deposit with the LESSOR certificates for such insurance at or prior to the commencement of the term, and thereafter within thirty (30) days prior to the expiration of any such policies. All such insurance certificates shall provide that such policies shall not be cancelled without at least ten (r 0) days prior written notice to each assured named therein.
18. FIRE, CASUALTY- EMINENT DOMAIN.
Should a substantial portion of the leased premises, or of the property of which they are a part, be substantially damaged by fire or other casualty, or be taken by eminenf domain, the LESSOR may elect to terminate this lease. When such fire, casualty, or taking renders the leased premises substantially unsuitable for their intended use, a just and .proportionate abatement of rent shall be. made, and the LESSEE may elect to terminate this lease if:
(a) The LESSOR fails to give written notice within thirty (30) days of intention to restore leased premises, or
(b) The LESSOR fails to restore the leased premises to a condition substantially suitable for their intended use within ninety (90) days of said fire, casualty or taking. The LESSOR reserves, and the LESSEE grants to the LESSOR, all rights which the LESSEE may have for damages or injury to.the leased premises for any taking by eminent domain, except for damage to the LESSEE's fixtures, property, or equipment.
19. DEFAULT AND BANKRUPTCY.
In the event that:
(a) The LESSEE shall default in the payment of any installment of rent or other sum . herein specified and such default shall continue for ten (10) days after written notice thereof; or
(b) The LESSEE shall default in the observance or performance of any other of the LESSEE's covenants, agreements, or obligations hereunder and such default shall not be corrected within thirty (30) days after written notice thereof: or
(c) The LESSEE shall be declared bankrupt or insolvent according to law, or, if any assignment shall be made ofLESSEE's property for the benefit of creditors,
then the LESSOR shall have the right thereafter, while such default continues, to declare the terin of this lease ended, without prejudice to any remedies which might be otherwise used for arrears of rent or other default. The LESSOR shall then be allowed to take whatever legal action is necessary to obtain court approval, via eviction or otherwise, to recover possession of the premises. Should LESSOR recover possession of the premises as stated herein, the LESSEE shall immediately remove all equipment, property, product, and inventory from the premises. The LESSEE shall indemnify the LESSOR against all loss of. rent and other payments which the LESSOR may incur by reason of such termination during the residue of the term. If the LESSEE shall default, after reasonable notice thereof. in the observance or performance of any conditions or covenants on LESSEE's part to be observed or performed under or by virtue of any of the provisions in any article of this lease, the LESSOR, without being under any obligation to do so and without thereby waiving such default, may remedy such default for the account and at the
expense of the LESSEE. If the .LESSOR makes any expenditures or incurs any obligations for the payment of money in connection therewith, including but not limited to, reasonable attorney's fees in instituting, prosecuting or defending any action or proceeding. such sums paid or obligations insured, with interest at the rate of per cent per annum and costs, shall be paid to the LESSOR by the LESSEE as additional rent.
20. NOTICE.
Any notice from the LESSOR to the LESSEE relating to the leased premises or to the occupancy thereof, shall be deemed duly served, if left at the leased premises addressed to the LESSEE, or if mailed to the leased premises, registered or certified mail, return receipt requested, postage prepaid, addressed to the LESSEE. Any notice from the LESSEE to the LESSOR relating to the leased premises or to the occupancy thereof, shall be deemed duly served. if mailed to the LESSOR by registered or certified mail, return receipt requested, postage prepaid, addressed to the LESSOR at such address as the LESSOR may from time to time advise in writiog. All rent notices shall be paid and sent to the LESSOR c/o Chart Holdings, LLC, 15 Richardson Road, Hollis, NH 03049.
21. SURRENDER.
The LESSEE shall at the expiration or other termination of this lease remove all LESSEE's goods and effects from the leased premises, (including, without hereby limiting the generality of the foregoing, all signs and lettering affixed or painted by the LESSEE, either inside or outside the leased premises). LESSEE shall deliver to the LESSOR the leased premises and all keys, locks thereto, and other fixtures connected therewith and all alterations and additions made to or upon the leased premises, in good condition, damage by fire or other casualty only excepted.
22. BROKERAGE.
There are no brokers involved in the leasing of the subject property.
23. CONDITION OF PREMISES.
Except as may be otherwise expressly set forth herein, the LESSEE shall accept the leased premises "as is" in their condition as of the commencement of the term of this lease, and the LESSOR shall be obligated to perform no work whatsoever in order to prepare the leased premises for occupancy by the LESSEE.
THIS SUBLEASE AGREEMENT is entered into on Jannary-3", 2017, by and between CHART HOLDINGS, LLC (''SUBLESSOR"), with an address of 280B Meffimack Street, Methuen, MA 01844, and BeWell Organic Medicine, Inc. ("SUBLESSEE"), with an address of 92 Bolt Street, Lowell, MA 01852 (the "Parties").
FOR VALUABLE CONSIDERATION, the Parties agree to the following terms and conditions.
1. Premises. Sublessor hereby subleases to Sublessee and Sublessee hereby subleases from Sublessor for the tenn specified below, and upon all of the conditions set forth herein, a portion of that certain real property, including all improvements thereon, commonly known by the street address of 100 Griffin Park Drive, Methuen, located in the County of Essex, Commonwealth of Massachusetts, and consisting of 9,685 sq. ft.,+/-.
2. Term. The term of this Sublease shall begin on the Commencement Date (anticipated to be approximately March 1, 2017) and ending on Februa1y 28, 2022, unless sooner tenninated pursuant to any provision hereof. Sublessor agrees to use its best commercially reasonable eff01ts to deliver possession of the Premises by the Commencement date. The Commencement date is defined as the first date in which the Sublessee opens for business. SEE OPTION TO RENEW, SECTION 9.
3. Base Rent. Sublessee shall pay to Sublessor as Base Rent for the Premises. as follows:
Annual Rent of$13.00 PSF, NNN per square foot Annual Rent of$14.00 PSF, NNN per square foot Annual Rent of $15.00 PSF, NNN per square foot Annual Rent of$16.00 PSF, NNN per square foot Annual Rent of$17.00 PSF, NNN per square foot.
Base Rent which is less than one month for any period during the term hereof shall be calculated at a pro rata p01tion of the monthly installment. The Sublessor shall be responsible for all utility costs for the Premises, including but not limited to electricity, air-conditioning, heat, and water and sewer charges.
The Sub lessee shall be responsible for its own electric and gas bills, which are separately metered. Cable and telephone services shall be provided by the Sublessor, and are considered part of the monthly rent.
4. Rent Defined. All monetary obligations of Sublessee to Sub lessor under the terms of this Sublease (except for the Security Deposit) are deemed to be rent ("Rent"). Rent shall be payable in lawful money of the United States to Sublessor at the address stated herein or to such other persons or at such other places as Sublessor may designate in writing.
(a) Agreed Use. The Premises shall be used and occupied for a medical marijuana dispensruy. (b) Compliance. Sub lessor warrants that the improvements on the Premises comply with all applicable covenants or restrictions ofrecord and applicable building codes, regulations and ordinances in effect on the commencement date. Said waffanty does not apply to the use to which Sublessee will put the Premises or to any alterations or utility installations made or to be made by Sublessee. (c) Acceptance of Premises and Lessee. Sub lessee acknowledges that (i) it has been advised to satisfy itself
1
with respect to the condition of the Premises (including but not limited to the electrical, HV AC and fire sprinkler systems, security, environmental aspects, and compliance with all applicable requirements) and their suitability for Sublessee's intended use; (ii) Sublessee has made such investigation as it deems necessaiy with reference to such matters and assumes all responsibility therefor as the same relate to its occupancy of the Premises; and (iii) neither Sublessor, Sublessor's agents, , nor any broker has made any oral or written representations or warranties with respect to said matters other than as set forth in this Sublease. (d) Equipment and Fixtures. Any equipment, trade fixtures, and other property in or attached to the demised premises by and at the expense of the Sublessee, which the Sublessee may have installed or placed on the Premises during its period of subtenancy, shall remain the property of the Sub lessee, and the Sublessor and the Master Lessor agree that the the Sub lessee shall have the right at any time, and from time to time, to remove any and all equipment, trade fixtures, and other property which it may have stored or installed in the Premises, provided that the Sublessee repairs any damage caused by said removal of fixtures and equipment.
6. Master Lease.
(a} Sub lessor is the lessee of the Premises by vittue of a lease, (the "Master Lease"), , wherein ADG 100 Griffin Brook Drive, Methuen LLC is the Lessor, ("Master Lessor").
(b) This Sublease is and shall at all times be subject and subordinate to the Master Lease.
(c) The terms, conditions and respective obligations of Sublessor and Sublessee to each other under this Sublease shall be the terms and conditions of the Master Lease except for those provisions of the Master Lease which are directly contradicted by this Sublease in which event the tenns of the Master Lease shall control over the Sublease. Therefore, for the purposes of this Sublease, wherever in the Master Lease the word "Lessor" is used it shall be deemed to mean the Sublessor herein and wherever in the Master Lease the word "Lessee" is used it shall be deemed to mean the Sublessee herein.
( d) During the tenn of this Sublease and for all periods subsequent for obligations which have arisen prior to the termination of this Sublease, Sublessee does hereby expressly assume and agree to perforrn and comply with, for the benefit of Sublessor and Master Lessor, each and every obligation of Sublessor under the Master Lease (the "Sublessee's Assumed Obligations"). The obligations that Sublessee has not assumed under this Paragraph 7 are hereinafter referred to as the "Sublessor's Remaining Obligations".
( e) Sub lessee shall hold Sub lessor and Master Lessor free and harmless from all liability, judgments, costs, datnages, claims or demands, including reasonable attorneys' fees, arising out ofSublessee's failure to comply with or perform Sub lessee's Assumed Obligations.
(f) Sublessor agrees to maintain the Master Lease during the entire term of this Sublease, subject however, to any earlier termination of the Master Lease without the fault of the Sub lessor, and to comply with or perform Sub lessor's Remaining Obligations and to hold Sub lessee free and hatmless from all liability, judgments, costs, damages, claims or demands arising out of Sublessor's failure to comply with or perform Sublessor's Remaining Obligations.
(g) Sublessor represents to Sublessee that the Master Lease is in full force and effect and that no default exists on the part of any party to the Master Lease.
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7. Assignment of Sublease and Default.
(a) Sublessor hereby assigns and transfers to Master Lessor the Sublessor's interest in this Sublease, subject to the provisions of this Paragraph 8.
(b) Master Lessor, by executing this document, agrees that until a default occurs in the performance of Sublessor's Obligations under the Master Lease, that Sublessor may receive, collect and enjoy the Rent accruing under this Sublease. Master Lessor shall not, by reason of this assignment of the Sublease nor by reason of the collection of the Rent from Sublessee, be deemed liable to Sublessee for any failure of Sublessor to perfonn and comply with Sub lessor's Remaining Obligations.
(c) Sublessor hereby itTevocably authorizes and directs Sublessee upon receipt of any written notice from the Master Lessor stating that a default exists in the performance of Sublessor's obligations under the Master Lease, to pay to Master Lessor the Rent due and to become due under the Sublease. Sublessor agrees that Sub lessee shall have the right to rely upon any such statement and request from Master Lessor, and that Sublessee shall pay such Rent to Master Lessor without any obligation or right to inquire as to whether such default exists and notwithstanding any notice from or claim from Sublessor to the contraiy and Sub lessor shall have no right or claim against Sublessee for any such Rent so paid by Sublessee.
(d) No changes or modifications shall be made to this Sublease without the consent of Master Lessor.
8. Consent of Master Lessor.
(a) In the event that the Master Lease requires that Sub lessor obtain the consent of Master Lessor to any subletting by Sublessor, then this Sublease shall not be effective unless, within ten (I 0) days of the date hereof, Master Lessor signs this Sublease thereby giving its consent to this subletting. It is understood and agreed that Master Lessor's assent to this sublet does obligate it to accept any further or future subletting of the premises.
(b) In the event that the obligations of the Sublessor under the Master Lease have been guaranteed by third Parties, then neither this Sublease nor the Master Lessor's consent shall be effective unless, within ten (I 0) days of the date hereof, said guarantors sign this Sublease thereby giving their consent to this Sublease.
( c) In the event that Master Lessor does give such consent then:
(i) Such consent shall not release Sublessor of its obligations or alter the prima1y liability of Sublessor to pay the Rent and perform and comply with all of the obligations of Sublessor to be perfonned under the Master Lease.
(ii) The acceptance of Rent by Master Lessor from Sublessee or anyone else liable under the Master Lease shall not be deemed a waiver by Master Lessor of any provisions of the Master Lease.
(iii) The consent to this Sublease shall not constitute a consent to any subsequent subletting or assignment.
(iv) In the event of any default of Sublessor under the Master Lease, Master Lessor may proceed directly against Sublessor, any guarantors or anyone else liable under the Master Lease or this Sublease
3
without first exhausting Master Lessor's remedies against any other person or entity liable thereon to Master Lessor.
(v) In the event that Snblessor should defanlt in its obligations under the Master Lease, then Master Lessor, at its option and without being obligated to do so, may require Sublessee to attorn to Master Lessor in which event Master Lessor shall undertake the obligations of Sublessor under this Sublease from the time of the exercise of said option to tennination of this Sublease but Master Lessor shall not be liable for any prepaid Rent paid by Sublessee, nor shall Master Lessor be liable for any other defaults of the Sublessor under the Sublease.
( d) The signatures of the Master Lessor and any Guarantors of Sublessor at the end of this document shall constitute their consent to the terms of this Sublease.
(e) Master Lessor acknowledges that, to the best of Master Lessor's knowledge, no default presently exists under the Master Lease of obligations to be perfonned by Sublessor and that the Master Lease is in full force and effect.
(f) In the event that Snblessor defaults under its obligations to be perfonned under the Master Lease by Sublessor, Master Lessor agrees to deliver to Sublessee a copy of any such notice of default.
9. Additional Provisions.
(A) OPTION TO RENEW: The Sublessee shall have the option to renew this Sublease Agreement for two (2) additional option periods of five (5) years, with the following procedures:
(a) The Sublessee shall deliver written notice to the Sublessor at least one hundred fifty ( 150) days prior to the expiration of the original term of the snblease of its intent to renew the Sublease.
All the terms and conditions as set forth in this lease agreement shall remain valid and in force during the extended term(s), except that the rental payment shall be adjusted by three (3%) in each extended tenn period.
I 0. Governing Law. This Sublease shall be governed by the laws of the Commonwealth of Massachusetts.
Date: 1 h 1J !2 -~1~-. -~-
Title: Manager, CHART HOLDINGS, LLC
4
Date:
" I anic Medicine, Inc.
Printed Name:Charles J. Saba
Title: President, Be Well Organic Medicine, Inc., in his capacity as President, and not Individually
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NO. 5
I. . ? f? App 1cat1on _-_ o _-__ Applicant Non-Profit Corporation Be Well Organic Medicine Inc.
SECTION D: LOCAL COMPLIANCE
Describe how the Corporation has ensured, and will continue to ensure, that the proposed RMD is in compliance with local codes, ordinances, and bylaws for the physical address( es) of the RMD.
Be Well Organic Medicine (BWOM) has received a letter of non-opposition for cultivation and processing in Lowell. The Lowell Building Commissioner has determined that the Cultivation and Processing Center complies with all local codes. BWOM will continue to work with all public departments in the Lowell to ensure compliance with all codes during build out and continuing forward. BWOM has a sublease agreement with Chart Holdings, which has leased the property - 100 Griffin Brook Drive, Methuen, MA. It is BWOM position that the location meets all of the requirements of I 05 CMR 725.110, and City of Methuen zoning ordinance. However, we have since been informed by the city's planning department that the location is located within 500 feet of a conservancy district (although the city's online zoning map indicates otherwise), which is not allowed by city ordinance. We continue to attempt to resolve this issue with the City of Methuen. Both properties are within all regulations, and conform to local zoning and building codes. The Director of Operations is responsible for compliance with all codes, ordinance, and bylaws for both locations. They will work in conjunction with the management of each location to ensure ongoing compliance.
Information on this page has been reviewed by the applicant, and where provided by the applicant, is accurate and complete, as indicated by the initials of the authorized signatory here: CMS
Siting Profile - Page 7
NO. 6
The City of Lowell • Dept. of Planning and Development • Division of Development Services Lowell City Hall • 375 Merrimack Street • Lowell, MA 01852
Charles J. Saba Be Well Organic Medicine Inc. 280B Merrimack St. Methuen, JYIA 01844
Re: Medical Marijuana Cultivation - 92 Bolt St., Lowell JYIA
Dear Mr. Saba,
Diane N. Tradd Assistaut City Ma11ager/DPD Director
R. Eric Slagle Director of Development Services
Shaun Shanahan Buildiusr Commissiouer
You have requested clarification of the City's zoning requirements for medical marijuana, more specifically for the medical marijuana cu1tivation center proposed for 92 Bolt St., Lowell MA. The City of Lowell has not adopted zoning specific to medical ma1-ijuana. We treat medical marijuana as a manufacturing use pursuant to Section 12.9(g) of the Zoning Ordinance. This use is allowed as a matter of right within the LI (Light Industt-ial) Zoning District, which is where the propetty at 92 Bolt St. is located.
Please contact me if you have any further questions.
Yours very truly,
R. Eric Slagle Director, Development Services
The City of l n 'A~ l l Alive. Ll11 iquc. Inspiring.
The City of Lowell • Dept. of Planning and Development • Division of Development Services Lowell City Hall • 375 Merrimack Street • Lowell, MA 01852
Re: One Merrimack Plaza, Lowell, MA (the "Property")
Ladies and Gentleman:
Diane N.Tradd Assistant City Manager/Director
R. Eric Slagle Director of Development Services
Shaun D. Shanahan Buildini Commissioner/CEO
In response to your request concerning the Property's compliance with the CMR requirements
and provisions of the Lowell Zoning Ordinance, please be advised of the following
1. . The location in question 92 Bolt St meets all requirements of CMR105/725.110(a)(14) and reads as
· follows" An RMD shall comply with all local requirements regarding siting, provided
however that if no local requirements exist, an RMD shall not be sited within a radius of
500 feet of a school, daycare center, or any facility in which children commonly
congregate. The 500 foot distance under this section is measurl:!d in a straight line from
the nearest point of the facility in question to the nearest point of the proposed RMD"
2. The City of Lowell has not further restricted the state CMR in regards to locations of RDM
facilities therefore. The Location of 92 Bolt St Is located in an industrial zone and all properties
located with-in 500 feet of said building are (B) use groups as well as (I) use groups both of these
use groups would not allow any of the restricted uses from occupying these adjacent locations to
92 Bolt St
3. Please see page 32 of the Lowell zoning ordinance's regarding supporting documents stating that
a RDM is allowed by RIGHT in an industrial. zone.
",;_~,L___-~un Shanahan
Building Commissioner
The City of LO WE LL Alive. Unique. Inspiring.
Page 32
ARTICLE V. DIMENSIONAL REQUIREMENTS
SECTION 5.1 TABLE OF DIMENSIONAL REGULATIONS. N6 building or structure shall be built nor shall any existing building or structure be enlarged which does not conform to the regulations as to maximum ratio of floor area to lot area, minimum lot sizes, minimum lot area for each dwelling unit or equivalent, minimum lot frontage, minimum setback dimensions of front, side and rear yards, minimum open space, and maximum height of structures, and all other dimensional requirements in the several districts as set forth in the Table of Dimensional Regulations, except as hereinafter provided. [Ord. 11-29-05, 4-18-06, 4-3-07, 9-27-11]
Type of District Use M"'. Mm. Min. Mm.
FAR Lot Size LA/DU Frontage
SUBURBAN SSF All oermitted uses 0.35 10000 10000 90** 1, 2, and 3 Family
DISTRICTS SMF Dwellinizs 0.75 20000 10000 90** All other uses 0.75 20000 3000 40**
1, 2, and 3 Family SMU Dwellings 2 20000 10000 90**
Other Residential Dwellings 2 20000 3000 40**
All other uses 2 --- - 25 RR AU nermitted uses 2 --- --- 25
TRADITIONAL TSF All nermitted uses 0.35 7000 7000 70** NGHBRHD. TTF 1 familv dwelline: --- 6000 6000 70** DISTRICTS All other uses -- 6000 4000 80**
TMF 1 familv dwellin>r --- 4500 4000 70**
All other uses ---- 6000 4000 80** TMU 1 fantilv dwellin_g ---- 4500 2500 10**
Other Residential Dwellin_gs - 6000 2500 80**
All other uses 1 ---- --- 25 NB Residential Dwellin1ts 1 6000 2500 40
All other uses 1 --- ---- 25 URBAN USF 1 fantilv dwellinP- 0.75 3000 2500 50**
DISTRICTS All other uses -- 5000 2500 50** UMF All permitted uses -- 3400 1000 55** UMU Residential Dwellin!!S - 3400 1000 55**
All other uses 4 ---- --- 25 DMU All permitted uses 4 ---- --- 25
SPECIAL HRC Residential Dwellings 3 43560 ---- 25 PURPOSE All other uses 5 --- ---- 25
DISTRICTS INST All permitted uses 2 - ---- 25 OP All permitted uses 2 - --- 25
INDUSTRIAL LI All permitted uses 2 - --- 25 DISTRICTS GI All permitted uses 2 -- --- 25
-Denotes no dimensional requirement * Front setbacks in these districts shall be consist"ent with existing setbacks on the block.
Dimensions (in feet or souare feet unless otherwise noted Front Yard Setbacks Mini.mum Mm. Mini.mum M>U. llix.
t Side and rear yard setbacks in these districts must be at least 15 feet when abutting a residenually-zoned lot. **Minimum residential frontage in these districts may be reduced by special permit under the provisions of Section 5.1.1 (7).
12. Please identify any agreements or contracts, executed or proposed, in which the applicant will engage in a Related Party Transaction and summarize the terms of each such agreement.
Be Well Organic Medicine, Inc. has entered into lease and sublease agreements with Chart Holdings, LLC. The Managers and Members of Chart Holdings, LLC, are Arthur P. Napolitano, Jr., and Charles M. Saba.
The directors of Be Well Organic Medicine, Inc. are Dr. Jean Tabit, Vincent C. Manzi, Jr., David T. Hilidt, Ronald D'Arcangelo, Hon. Kevin P. Herlihy (ret.), Jennifer L. Napolitano, Charles J. Saba, and Robyn A. Saba. Of the directors, three (3) are family members of the Member/Managers of Chart Holdings, LLC. They are Jennifer Napolitano (wife of Arthur P. Napolitano, Jr.), Charles J. Saba (son of Charles M. Saba), and Robyn A. Saba (wife of Charles M. Saba).
The majority of the directors for Be Well Organic Medicine, Inc. are not related to the principals of Chart Holdings, LLC, which provides assurance that the revenue of the RJ\ID is used in furtherance ofBeWell1s non-profit purpose. The lease and sublease agreements involve compensation for space at fair market value for the leased and subleased prope11ies, are commercially reasonable. An independent legal opinion is provided.
Infonnation on this page has been reviewed by the applicant, and where provided by the applicant, is accurate and complete, as indicated by the initials of the authorized signatory here: CMS
