[DRAFT ] DEVELOPMENT AGREEMENT

Transcription

1 [DRAFT ] DEVELOPMENT AGREEMENT This Agreement is entered into as of this day of March, 2014, by and between Brickstone Sharon, LLC, a Massachusetts limited liability company, (the Developer ) and the Town of Sharon, acting by and through its Board of Selectmen (the Town and together with the Developer, the Parties ) and for those provisions specifically enumerated, the Sharon Conservation Commission (the Commission ), for good and valuable consideration the receipt and sufficiency of which are hereby acknowledged (the Agreement ). The Agreement represents the understanding between the parties with respect to the contributions and commitments of the Developer with respect to mitigating impacts arising from the development of a 98-unit cluster subdivision (the Project ) located off Mountain Street in the Town of Sharon, as more particularly shown as that 337-acre parcel, located between Bay Road and Mountain Street, on Exhibit A (the Site ). 1. GENERAL 1.1 The Project shall comply with all applicable governmental statutes, rules, regulations and by-laws of (i) the Town of Sharon, including, but not limited to those of the Board of Selectmen, the Board of Health, the Planning Board, the Commission, the Zoning Board of Appeals, (ii) the Commonwealth of Massachusetts and (iii) Federal Agencies as they apply to the construction, operation and maintenance of the Project, including, without limitation, compliance with Wetlands Protection Act final orders, the Massachusetts Environmental Policy Act (MEPA), General Laws Chapter 30, Section 61, and the State Building Code, unless variances, waivers or similar relief is granted pursuant to local, state or federal regulations by the appropriate regulatory or permit granting authority or as provided by Town Meeting (the Laws ). 1.2 The Developer shall comply with all applicable regulations issued by the Commonwealth of Massachusetts relative to the existence of hazardous waste located on the Site, including compliance with the provisions of M.G.L. Chapter 21E and other applicable government codes. 1.3 If necessary, the Developer shall file an Environmental Notification Form ( ENF ) under MEPA covering the entire Project, if required, and any required Environmental Impact Report ( EIR ) prior to the commencement of any construction except for Project Site preparation, which may commence prior to the final issuance of the EIR decision if authorized by the Secretary of Environmental Affairs. 1.4 The Project shall consist of 98 lots for the construction of single family homes, with access from Mountain Street, a shared wastewater treatment system, trails, and other related infrastructure and amenities. The Project shall contain no more than 377 bedrooms or an 1

2 average of 3.85 bedrooms per house. The Project, including without limitation all infrastructure, roadways, utilities, residential units, and recreational facilities, is anticipated to be and may be constructed in phases by one or more different successors to the Developer, which phases may overlap. The completion of any one proposed phase of the Project shall not be a prerequisite for the commencement of any other phase(s) of the Project. However, prior to the receipt of any lot release in any additional or subsequent phase of the Project, the waste water treatment facility must have sufficient capacity to accommodate waste water generated by the phase that is about begin construction. Bonding requirements pertaining to the Project are also anticipated to be obtained in phases corresponding to the various phases of the Project. Construction of the Project is contingent on the passage of (i) a Rezoning Article establishing a Rattlesnake Hill Open Space Overlay District, including development requirements and allowed uses (a copy of which is attached hereto as Exhibit B and incorporated as if fully set forth herein); (ii) a Land Transfer Article regarding the land transfers described in Article 4 below; and (iii) a Signage Article regarding certain changes to the Town s Sign ByLaw (all to be acted upon at a Town Meeting to be held on May 5, 2014, (collectively, the Project Articles ). 1.5 In consideration of the Developer s promises contained herein, the Town and the Commission agree to support the proposed Project Articles to effectuate the terms and intent of this Agreement. The Town will use its best efforts to assist the Developer in obtaining any permit or approval required under the Laws and will continue to support the Project before and while all the Project s homes are constructed. Nothing contained herein shall be deemed to be a guarantee of the successful or affirmative vote on any such Project Articles. 1.6 The Developer shall remit reasonable fees for the Town s (i) attorneys, (ii) engineering consultant, (iii) zoning consultant, and (iv) appraisal performed in conjunction with the land transfer contemplated in Section 4 hereof as the same may be agreed upon in advance by the parties hereto. 1.7 The Developer shall use reasonable efforts to analyze the feasibility of the Project, or the individual houses being constructed as a part of the Project, as being certifiable under the LEED for Homes rating system set forth by the U.S. Green Building Council, such reasonable efforts to be limited to those economically reasonable efforts undertaken by single family home developers. The Developer, in its sole discretion, may seek certification. 2. CONSTRUCTION PHASE RESPONSIBILITIES AND MITIGATION 2.1 Construction of all structures on the Site shall comply with all applicable zoning regulations in effect and with the State Building Code. The Town shall not sponsor or support, prior to the issuance of the final building permits for the Project, any changes in the Zoning By-Laws, General By-Laws or Rules and Regulations of any Town boards or committees, which would limit or prohibit the proposed Project on the Site, and the Town shall support modifications of permits requested by Developer necessary on account of project phasing. 2

3 2.2 The Developer shall work with the Town to coordinate an integrated approach to permitting and inspections. 3. WATER IMPROVEMENT COMMITMENTS AND MITIGATION 3.1 In conjunction with the development of the Project, the Developer shall construct and transfer to the Town ownership of certain improvements to the Town s water distribution system. As set forth more fully below, the Parties are awaiting final water modeling analysis to determine the location and design of the water lines, pumping station, and other water improvements, and the Parties agree to work cooperatively on the scope of these improvements as the modeling analysis is available. (It is anticipated that the water-related infrastructure improvements will consist of a pumping station and related piping improvements in Mountain Street to service the Project at standard levels, as defined below, for residential subdivisions similar to the Project.) Installation of improvements to the water distribution system to be provided by the Developer shall comply with the following: (a) The design engineer for all water-related infrastructure improvements shall be acceptable to the Sharon Water Department ( Water Department ). Final construction plans and specifications of all water-related infrastructure improvements shall be submitted for review and approval by the Water Department, which the Town agrees shall be reviewed in a reasonable and timely manner. The Developer shall compensate the Town for the cost of a peer review engineer engaged to review submissions and to observe construction of the water distribution improvements. (b) Water distribution improvements shall comply in all respects with the standards and requirements of the American Waterworks Association and the Water Department. At a minimum, all water mains shall be 8-inch cement lined bituminous coated ductile iron pipe class 52 minimum, hereinafter CLDI. Hydrant assemblies shall be installed at intervals required by the Water Department or ISO standards. Full diameter line valves shall be installed at maximum intervals of 1,000 feet. All water main junctions shall be provided with three full diameter gate valves. Any and all pumping station(s), if necessary, shall have standby power provided by natural gas, or if available, liquid natural gas or propane. (c) In the event any water mains are installed within paved streets, such streets shall be patched or repaved in a mutually acceptable manner to be agreed upon by the Parties. (d) The Water Department may alter any of the foregoing water-related infrastructure construction standards as may be required to meet field conditions, provided such changes are reasonably necessary and are proposed in good faith to advance the development of the Project. Any other changes shall be mutually agreed by the Developer and the Water Department. (e) The Developer shall prepare a construction management plan specifically designed to address the installation of the water-related infrastructure improvements set forth herein, which shall be submitted for approval by the Sharon Police Department. All materials, 3

4 equipment, and personnel required for maintenance of traffic related to such installation shall be furnished at no cost to the Town. 3.2 The improvements to the Town s water distribution system shall include extension of the existing water main located in Mountain Street at a distance North of the Project and within the Mountain Street right-of-way to be mutually reasonably agreed upon by the Parties working cooperatively. In general, location of these improvements is shown on Exhibit C, attached hereto and incorporated as if fully set forth herein. With respect to all existing houses not currently connected to municipal water and which front on Mountain Street, where the water main will be installed under the provisions of this Section 3.2, required taps and curb stops shall be provided in order to allow property owners to connect to the municipal water distribution system. 3.3 Also in conjunction with the development of the Project, the Developer shall construct and transfer to the Town ownership of the following improvements to the Town s water distribution system: (a) an 8-inch diameter CLDI water line loop through the Project constructed off the distribution system running along Mountain Street, with appropriately spaced fire hydrant assemblies and line valves, as reasonably approved by the Town Fire Chief, extending through the Site, as generally depicted on Exhibit C, attached hereto and incorporated as if fully set forth herein. The loop will connect with the Mountain Street main at the intersections of the Project s two proposed roadways off of Mountain Street and each of the two connections will include taps and curb stops. (b) any and all pumping station(s), if necessary, servicing the above-described waterrelated infrastructure improvements and the Project and located within the Mountain Street right-of-way. It is understood that the Town will cooperate with the Developer to provide any necessary temporary or permanent easements, licenses, or other authority to construct water-related infrastructure improvements in the right-of-way. 3.4 In connection with the water improvements proposed for the Project, the Developer has commenced to study, and will continue to study as updated data for the Town s water model becomes available, the impact of the Project s proposed water distribution system on the Town s existing water distribution system (the Water Studies ). The Developer agrees to install the necessary water-related infrastructure to ensure steady/sufficient water pressure for domestic and fire use that meets accepted ISO requirements within the Project. The design of all water-related infrastructure will be as mutually reasonably acceptable to the Parties upon the completion of the Studies. 3.5 The Town agrees to cooperate with the Developer in applying for and obtaining any permits or approvals necessary to construct the water-related infrastructure improvements described in this Article 3, and Developer s obligations are contingent on receipt of such approvals which Developer agrees to diligently seek with the Town s cooperation. The Developer shall pay all costs associated with obtaining such permits and approvals. Provided all necessary permits or approvals for such improvements are issued without 4

5 unreasonable delay, and accounting for the phased nature of the Project, such improvements shall be constructed prior to the initial Certificate of Occupancy for the Project. Ownership of such water improvements shall be transferred to the Town upon the completion of construction of such improvements. The Town hereby agrees to accept delivery and ownership thereof upon certification by the Town Engineer that said improvements have been constructed and installed to his reasonable satisfaction. 3.6 In recognition of the water-related infrastructure improvements contributions described in this Article 3, the Town shall charge the Developer a water connection fee at the rate of $2, per unit for the each unit in the Project notwithstanding the then-applicable water connection fee charged by the Water Department. 3.7 To the extent roadways within the Project remain privately-owned, the Developer shall grant to the Town, acting as the Board of Water Commissioners, a twenty foot (20 ) wide easement centered upon the 8-inch water line described in Section 3.3(a) so that the easement area extends horizontally approximately ten feet (10 ) on either side of the water line. An easement agreement, in a form mutually acceptable to the Parties shall be recorded at the Registry of Deeds when ownership of the water-related infrastructure improvements set forth in this Article 3 are transferred to the Town pursuant to Section 3.5. Among other requirements, the easement agreement shall provide that the twenty foot (20 ) wide easement area and improvements therein may be relocated at the Developer s discretion (subject to the provisions of Section 3.1(a)) and cost provided there shall be minimal interruption in service to any users of the water line. The easement agreement shall also authorize the Town to enter over and across the Site s roadways in order to access the twenty foot (20 ) wide easement area for purposes of maintenance, repair and reconstruction; such access to be subject to standard conditions of minimum disturbance, restoration, and standard insurance provisions. As built plans showing the areas subject to said easement shall be provided to the Town Engineer. 3.8 The Developer shall not be obligated to construct the water improvements set forth in this Article 3 unless and until it proceeds to construct the Project. 4. LAND TRANSFERS 4.1 In accordance with the schedule set forth in this Section 4.1, the Developer shall transfer by grant its fee title interest of certain land within the Site to the Town either (a) to be held as open and undeveloped land and to remain in its natural condition ( Conservation Gift Land ) except as provided in Section 4.4 herein, which Conservation Gift Land shall total approximately acres, or (b) for general municipal purposes ( General Municipal Land and together with the Conservation Gift Land, the Gift Lands ), which General Municipal Land shall total approximately 6.66 acres. The General Municipal Land cannot be used for uses that would be materially harmful to a first-class residential development. By way of example, the Parties agree that the following uses are not materially harmfulyard waste composting area, fire sub-station or Town water supply improvements, like a water tower no higher than 35 feet. The Developer shall transfer its fee title interest in the Conservation Gift Land to the Commission and the General Municipal Land to the Town. Such land is generally shown on Exhibit D, attached hereto and incorporated as if fully set 5

6 forth herein. As a precondition to the transfers described herein, the Town shall provide the Developer with a letter, suitable for submission to the Internal Revenue Service and Massachusetts Department of Revenue, recognizing the transfer of land described herein as a gift under the federal Internal Revenue Code and applicable Massachusetts tax laws. Upon completion of all reviews and upon receipt of all approvals and permits for a Project consisting of not less than 98 residential units, the conveyance of the Conservation Gift Land and General Municipal Land contemplated in this Section 4.1 shall occur. 4.2 In accordance with the schedule set forth in this Section 4.2, the Town and/or the Commission agrees to purchase approximately acres of the land (the Purchased Land ) within the Site for a purchase price of $3,000, and, in consideration of the payment of such purchase price, the Developer shall transfer its fee title interest in the Purchased Land to the Town and/or the Commission, to be held as open space, conservation land, and/or for recreation purposes and to remain in its natural condition except as provided in Section 4.4 herein. Approximately one half of the Purchased Land shall be used for open space and/or conservation purposes under the control and direction of the Commission and approximately one half of such land shall be used for recreation purposes under the control and direction of the Town. Subject to the forgoing limitations, the precise delineation of each portion of the said approximately 60 acres shall be as determined by the Town. Such Purchased Land is generally shown on Exhibit D, attached hereto and incorporated as if fully set forth herein. With respect to the Purchased Land and the Conservation Gift Land at the time of the respective transfers, the Town shall record for those lands conservation restrictions in perpetuity, subject to the provisions at Section 4.4, pursuant to Mass. Gen. L. ch. 40, 8C and Mass. Gen. L. ch. 184, 31-33, with the Registry of Deeds. The Commission shall designate a co-grantee on the restriction. The transaction of Purchased Land contemplated in this Section 4.2 shall occur upon the issuance to Developer of final and unappealable permits and approvals for a Project of not less than 98 residential units and necessary related water, wastewater, roadway, and other infrastructure and the first building permit for a residential unit therein. 4.3 Upon completion of all reviews and upon receipt of all final and unappealable approvals and permits for a Project consisting of not less than 98 residential units and necessary related water, wastewater, roadways, and other infrastructure (which approvals shall contemplate and allow, without lapse, the phasing of construction of such units and infrastructure) and construction of the Project s wastewater treatment system and related appurtenances, the Developer shall enter into an agreement with the Town, in a form mutually agreeable to the Parties, which agreement shall provide that certain portions of the Project (the Private Restricted Lands ) labeled as the Private Restricted Lands Area as generally shown on Exhibit A attached hereto and incorporated as if fully set forth herein are subject to a restriction against future development. This restriction shall be enforceable by the Town. Notwithstanding the foregoing, permitted uses on the Private Restricted Lands may include but are not limited to landscaped areas, conservation and passive recreation, subsurface improvements such as utility lines, infiltration systems, monitoring wells, facilities and buildings used in connection with connection to on-site waste water treatment facilities, above-grade utility lines, transformers, poles and related appurtenances, storm water retention basins or swales and related infrastructure improvements and habitat 6

7 mitigation requested or required by the Natural Heritage & Endangered Species Program pursuant to the Massachusetts Endangered Species Act. 4.4 The Developer shall be able to access and use the land described in Sections 4.1,4.2, and 4.3 for the purposes of constructing and maintaining access trails, the design and location of which shall be mutually agreed upon between the Developer, the Town, and the Commission. The Developer shall have the ability to use the land described in Sections 4.1, 4.2, and 4.3 for purposes of constructing, locating, maintaining, repairing, reconstructing and using wastewater and stormwater collection and distribution pipes and infiltration systems and interception wells and pipes for irrigation purposes for the purposes of (a) stormwater management facilities and (b) interception wells and irrigation systems serving the Project. The specific design and location of such a groundwater discharge system and stormwater management facilities shall be performed in cooperation and consultation with the Town and the Commission. The Developer shall have the ability to use the land described in Sections 4.1, 4.2, 4.3 for locating, maintaining, repairing or reconstructing or otherwise restricting areas for any wildlife habitat enhancements requested or required by the Natural Heritage & Endangered Species Program pursuant to the Massachusetts Endangered Species Act in cooperation and consultation with the Commission. For the purposes of complying with all permits and approvals under the Natural Heritage & Endangered Species Program, the lands transferred to the Town under this Section 4.0 and the lands remaining part of the Project shall be treated as one lot. 4.5 Provided the Developer agrees to proceed to construct the Project, the Town, acting by and through its Commission, shall have the right to purchase any or all of the individual lots identified by cross-hatching on the plan attached as Exhibit E, a copy of which is attached hereto and incorporated as if fully set forth herein. In order to purchase such lots, the Town must provide written notice of its election to purchase such lots from the Developer no earlier than the Fall 2014 Town Meeting and no later than (i) two weeks after the Fall Town Meeting or (ii) November 30, 2014, whichever comes earlier (the Town s Election Notice ). Upon receipt of the Town s Election Notice, the Developer will provide the Town with the fair market price for each lot, including an allocation for Project infrastructure costs, within 90 days of receipt of the Town s notice (the Developer s Price Notice ). The Town shall have 30 days from receipt of the Developer s Price Notice within which to identify which lots it will proceed to acquire (the Town s Response Notice ). From and after the Developer s receipt of the Town s Response Notice, the Developer will provide written notice to the Town of the closing date (the Closing Date Notice ) for the acquisition of the lots identified in the Town s Response Notice, such closing date to be no earlier than 60 days from the date of the Closing Date Notice. If the Town fails to close upon the acquisition of a lot identified in the Town s Response Notice on such closing date, its right to acquire such lot shall be null and void. Notwithstanding anything in this Section 4.5 to the contrary, if Developer receives a bona fide offer to purchase all or substantially all of the Site prior to receipt of the Town s Election Notice, or this Agreement is otherwise terminated pursuant to its terms, the Site may be conveyed and this Section 4.5 shall have no force or effect. 7

8 5. TRAFFIC AND ROADWAY 5.1 The Developer will retain and pay the fee of a Traffic Consultant to perform a traffic impact study (the TIAS ) of the proposed Project as part of the subdivision approval process prior to issuance of a building permit for the Project. The TIAS will be submitted to the building inspector and the Town. The Developer, as may be agreed upon (and subject to obtaining all necessary permits, approvals and existing right-of-way), shall implement the recommendations and requirements contained in the TIAS at no expense to the Town by the timeframes or thresholds recommended by such TIAS. Except as may be required by the TIAS, or on account of the water improvements described in Article 3, the Parties agree Mountain Street shall not be paved outside those areas not currently paved. 5.2 All primary access to the Project shall be designed to be from Mountain Street. The Developer shall improve those portions of Mountain Street, to the extent deemed necessary in the TIAS. Any approved roadway modifications must be approved by the Sharon Department of Public Works ( DPW ), in accordance with its standard procedures. DPW and the Town acknowledge the unique, rural character of Mountain Street and will cooperate with the Developer to ensure that any improvements are compatible with local service needs and the character of Mountain Street. 5.3 Within the land to be transferred to the Town as provided by Section 4.2, and in connection with such transfer, the Developer shall provide a trail head off of Mountain Street and an unpaved pull-off area for approximately four (4) cars and signage for public access to the trails through the Project and adjacent conservation lands including those lands described in Section 4 hereof. 6. WATER QUALITY COMMITMENTS AND MITIGATION 6.1 As part of the Project, the Developer proposes to install a waste water treatment facility (the Facility ) and soil absorption system (the Waste Water System ). The proposed location of the Waste Water System is shown on Exhibit F, a copy of which is attached hereto and incorporated as if fully set forth herein. The Waste Water System shall be designed according to all applicable state and local requirements and must obtain all necessary approvals prior to construction and operation unless waivers or variances are granted therefrom. The waste water system will install water quality monitoring systems as required by the Department of Environmental Protection Groundwater Discharge Permit required for the Project. The Facility shall be operated and maintained by a licensed waste water treatment facility operator at all times. 6.2 The parties recognize that the Developer is not precluded from permitting, constructing, or using any other area within the Site in accordance with the Regulations of the Department of Environmental Protection and the Sharon Board of Health, as applicable. 6.3 The Developer shall, subject to applicable and enforceable state and local permitting requirements (including design parameters for redundant systems), design the Facility based on usage by no more than 98 residential single family homes of the type proposed. 8

9 6.4 The Developer shall simultaneously provide the Town with copies of all reports and monitoring logs that will be submitted to the Commonwealth. 6.5 The Developer may install shallow interceptor wells (not located in the existing underlying aquifer) for purposes of recapturing water from the Waste Water System for non-potable water purposes, including but not limited to, irrigation uses. 7. PERFORMANCE BONDS 7.1 Prior to the commencement of any work with regard to the water system improvements, as shown on Exhibit C, the Developer shall post with the Sharon Town Clerk a bond or surety in such amount as shall be determined by the Town Engineer and consistent with the normal and customary bonding requirements for contractors performing public utility work to secure proper completion of the water system improvements. Said performance bond shall be in a form reasonably acceptable to Town Counsel. Any performance bond or bonds required under this section shall be reflective of the phased nature of the Project and shall be posted by the developer of the phase associated with such phase. 7.2 In those instances when conditions requiring construction, operation or maintenance of an improvement are not so satisfied prior to the issuance of a Occupancy Permit, for the Project or phase thereof, due to the nature of the condition, delay or other matters beyond Developer s control, the Town and the Developer shall reasonably agree on the amount and nature of a bond, letter of credit or other form of acceptable security to ensure completion of those conditions not yet satisfied and the Building Inspector, upon notification that such bond or security is satisfactory to Town Counsel, shall issue the Occupancy Permit. 7.3 Prior to the commencement of any work with regard to the Project, or phase thereof, the Developer shall provide a performance bond or other form of security as required by the Town s Subdivision Rules and Regulations, to protect against actual losses suffered in connection with construction of the Project, or phase thereof. 7.4 Nothing contained herein shall limit the applicable provisions of the Project Articles. 8. AFFORDABLE HOUSING 8.1 The Developer and the Town agree that the exclusive affordable housing mitigation requirement that the Developer will provide with respect to the Project shall be the onetime payment of $250, payable to the Town of Sharon entity designated by the Town and due only upon the issuance to Developer of final and unappealable permits and approvals for the Project s first building permit and necessary related water, wastewater, roadway, and other infrastructure. 9. MISCELLANEOUS 9.1 The Town and Developer acknowledge that references to building permit(s) contained herein refer to permits associated with the single family houses contemplated and defined in the Rezoning Article and do not mean permits associated with Site preparation, foundation or utility work. 9

10 9.2 No special permits are required for the Project or for the Project s site plan, as presented and substantially shown on the attached Exhibit A, under the existing Zoning By-Law or the proposed Rezoning Article. 9.5 Upon final and unappealable issuance of the first building permit for the residential units to be constructed at the Project, the Developer shall cause the pending Housing Appeals Committee proceeding with respect to the existing comprehensive permit to be withdrawn, mooted or otherwise dismissed and the Town shall reasonably cooperate in that regard and with regard to dismissal of any pending lawsuit concerning such 40B comprehensive permit. 9.6 Upon final and unappealable issuance of the first building permit for the residential units to be constructed of the Project, the Developer, with the Town s cooperation, shall terminate the Development Agreement dated as of May 2, 2007, by and between the Developer and the Town, as amended, concerning the Sharon Hills project, so called, and Developer shall have no rights or obligations thereunder. 9.7 The Developer intends to permit and construct the Project substantially in accordance with Exhibit A. The Town and the Developer acknowledge that Exhibit A is a preliminary plan and, therefore, subject to all of the use, dimensional and other restrictions contained in the Rezoning Article, the Project design, engineering, Site conditions, or local and state permitting processes and similar such matters may result in changes to the proposed Project layout and program. The Town and Developer shall cooperate in achieving the Project depicted on Exhibit A (as the same may be changed pursuant to the terms of this Section) and the goals set forth in this Agreement. 9.8 In the event that further Town Meeting authorizations or State approvals are needed to effectuate the terms and intent of this Agreement, the Town and Developer shall mutually cooperate to obtain such authorizations or approvals. 9.9 Documentary Production Concurrent with the presentation of this Agreement, the Developer shall provide representation from the Managing Member of Brickstone Sharon, LLC that it intends, subject to Section 9.10, to maintain said LLC as a going concern able to discharge its responsibilities hereunder Forbearance from Suit Developer shall forego any actions at law or equity attempting to contest the validity or prevent the enforceability of any provisions of this Agreement and shall procure written acknowledgment that such forbearance shall bind any successor or assign. Such forbearance shall not preclude the Developer from bringing any action for breach of contract on the part of the Town or acts of intentional misconduct on the part of the Town with respect to matters contemplated herein Successors and Assigns 10

11 The Developer may assign the rights and obligations contained in this Agreement in whole or part. Notice of the transfer shall be provided to the Town upon such transfer. All terms of this Agreement, including the Land Transfer provisions relating to those portions of the land owned by the Developer not included in the Rezoning Article and shown on Exhibit D, attached hereto and incorporated as if fully set forth herein (the Land Transfer Parcels ), shall bind and inure to the benefit or burden of any successor or assign of this Agreement, in whole or part to account for the anticipated phased construction of the Project, or any successor or assign of land within the Site or Land Transfer Parcels, in whole or part to account for the anticipated phased construction of the Project, and shall run with the land. Notice of this Agreement (the Notice ), in a form reasonably acceptable to Town Counsel and counsel for the Developer, shall be recorded at the Registry of Deeds, at no cost to the Town, within twenty-four (24) hours of the approval of the Project Articles at Town Meeting. In the event that the Project Articles are not approved by the Attorney General s Office, or this Agreement is terminated by its terms, the parties agree to immediately record a release of Notice. Failure by the Town to record such a release within seven (7) days of the Attorney General s rejection of the Project Articles or termination of this Agreement shall entitle the Developer to record a release of said Notice. A release of the Notice, fully executed by the parties, in recordable form, shall be delivered in escrow to be held by counsel to the Developer at the time the Notice is recorded at the registry of deeds Notices Unless otherwise specified herein, all required Notices hereunder shall be deemed sufficient if sent registered mail to the parties at the following addresses: Town: Town of Sharon Town Hall 90 South Main St. Sharon, MA Attn: Town Clerk with a copy to Richard A. Gelerman, Esq. Gelerman and Cabral, LLC 30 Walpole Street Norwood, MA Developer: Brickstone Sharon, LLC c/o The Brickstone Companies The Plaza at Continental Park 2101 Rosecrans Avenue, Suite 5252 El Segundo, CA Attn: John Kusmiersky 11

12 with a copy to: The Brickstone Companies The Plaza at Continental Park 2101 Rosecrans Avenue, Suite 5252 El Segundo, CA Attn: John G. Baker, Esq. and Goulston & Storrs, P.C. 400 Atlantic Avenue Boston, MA Attn: John E. Twohig, Esq. For the purposes of this Section, the date of receipt shall be the date of mailing Governing Law This Agreement shall be governed by the laws of the Commonwealth of Massachusetts. The parties hereby consent to non-exclusive jurisdiction of the courts of the Commonwealth of Massachusetts sitting in the Counties of Norfolk or Suffolk Amendments to this Agreement Amendments to the terms of this Agreement may be agreed to on behalf of the Town by the Board of Selectmen, or with regard to Sections 4.1 and 4.2 only, by the Commission, provided that no such amendment shall relieve the Developer of any material obligation without prior approval of Town Meeting Indemnity Developer agrees to indemnify and hold harmless the Town, its officers, agents and employees from and against all claims and liabilities, including reasonable attorney's fees and expenses incurred in the defense thereof, relating to personal injury or property damage to the extent arising out of the acts or omissions of the Developer and/or its officers, directors, employees or agents in connection with their duties under this Agreement. The indemnity required by this Section 9.14 shall be the sole obligation of the developer of a phase for which the act or omission by such developer is the cause for such indemnified claim or liability Miscellaneous The Developer acknowledges and agrees that this Agreement shall be binding upon the Developer and each of its successors or assigns as to the whole or part of the Project, as applicable, as to the obligations which arise under this Agreement during their respective periods of ownership of a phase or phases of the Project. As and when requested by the Developer, the Town will promptly advise, in writing, the status of the Developer s 12

13 obligations or satisfaction thereof under this Agreement for the benefit of existing and prospective mortgagees of all or a portion of the Project and such other persons as the Developer may designate. The Developer shall not be considered to be in breach of this Agreement for so long as the Developer is unable to complete any work required hereunder due to a force majeure event or other events beyond the reasonable control of Developer. In the event that the Town believes that a breach by Developer under this Agreement exists, it shall give written notice of the same to the Developer and give the Developer a reasonable period of time to cure such breach before taking any action on the same. The Developer shall not be considered to be in breach of this Agreement in the event that the Developer decides, in its sole discretion and for any reason or no reason, to decline to commence construction of the Project under this Agreement or to halt, permanently or temporarily, completion of the Project or any one of the proposed phases of the Project. For purposes of this Agreement, and in regards to references to receipt of permits and approvals, the Developer s obligations are subject to completion of all reviews and receipt of all final and unappealable approvals and permits for the Project consisting of not less than 98 residential units and necessary related water, wastewater, roadways, and other infrastructure (which approvals shall contemplate and allow, without lapse, the phasing of construction of such units and infrastructure). The Developer shall use good faith efforts to seek the necessary permits and approvals necessary for the Project upon approval of the Project Articles. In the event the Developer is denied a permit or approval required to proceed with the Project, the Developer has no obligation to appeal such denial and may use the Site alternatively. The Developer may terminate this Agreement if all reviews and all final and approvals and permits necessary for issuance of a building permit for the Project have not occurred or been received without unreasonable delay or unreasonable conditions, fees or charges imposed therein consisting of not less than 98 residential units and necessary related water, wastewater, roadways, and other infrastructure (which approvals shall contemplate and allow, without lapse, the phasing of construction of such units and infrastructure). Unreasonable delay shall mean, for purposes of this Agreement, the failure to receive necessary permits and approvals for issuance of a building permit for the Project within 120 days of the filing of the respective application. Except as specifically set forth herein, this Agreement shall become effective at such time as the Project Articles to be considered at the May 5, 2014 Town of Sharon Town Meeting are approved by Town Meeting and the Attorney General s Office of the Commonwealth of Massachusetts. In the event that the Attorney General s Office approves the Project Articles, or the same is deemed approved, but a third party commences legal proceedings claiming invalidity of one or more of the Project Articles and as a result of such proceeding one or more of the Project Articles are finally adjudicated to be invalid, either in whole or in part, by a decision of a court of competent jurisdiction (and all appeal periods with respect to such decision have lapsed), then this Agreement, at the option of the Developer may be terminated by notice to the Town and shall thereupon be of no further force or effect. It is expressly agreed that the Agreement may only be so terminated if the 13

14 Developer abandons all efforts to construct the Project pursuant to the Project Articles by like written notice to the Town. In the event that only a part of one or more of the Project Articles are finally adjudicated to be invalid, and the Developer wishes to proceed with or authorize others to proceed with construction of the Project or other substantially similar improvements on the Site pursuant to the Project Articles, it shall give written notice of such intent to the Town and such written notice shall ratify and confirm this Agreement. The parties agree to cooperate and to act in good faith for the purpose of carrying out the provisions of this Section. [Signatures on next following pages] 14

15 EXECUTED under seal as of the date and year first above written. BRICKSTONE SHARON, LLC By: Name: John Kusmiersky Its: Managing Member Hereunto Duly Authorized TOWN OF SHARON BOARD OF SELECTMEN By: Name: Its: Chair Hereunto Duly Authorized TOWN OF SHARON CONSERVATION COMMISSION (as to Sections 4.1 and 4.2 only and for no other provisions or purposes) By: Name: Margaret Arguimbau Its: Chair Hereunto Duly Authorized 15

16 COMMONWEALTH OF MASSACHUSETTS County of, ss. On this day of, 2014, 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 document, and acknowledged to me that he signed it voluntarily for its stated purpose, as of, LLC. Notary Public My Commission Expires: COMMONWEALTH OF MASSACHUSETTS County of, ss. On this day of, 2014, 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 document, and acknowledged to me that he signed it voluntarily for its stated purpose, as Chair of the Town of Sharon Board of Selectmen. Notary Public My Commission Expires: COMMONWEALTH OF MASSACHUSETTS County of, ss. On this day of, 2014, before me, the undersigned notary public, personally appeared Margaret Arguimbau, 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 Chair of the Town of Sharon Conservation Commission. Notary Public My Commission Expires: 16

17 EXHIBIT A 17

18 EXHIBIT B 18

19 EXHIBIT C 19

20 EXHIBIT D 20

21 EXHIBIT E 21

22 EXHIBIT F 22