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HomeMy WebLinkAbout2007-12-04 Board of Selectmen HandoutDEVELOPMENT AND INFRASTRUCTURE AGREEMENT FOR ADDISON WESLEY LONGMAN PROPERTY, READING This Development and Infrastructure Agreement (the "Agreement") is made as of this 4th day of December, 2007 by and between National Development Acquisitions, LLC, a Massachusetts limited liability company, with an address c/o National Development, 2310 Washington Street, Newton Lower Falls, Massachusetts 02462, (the "Owner") and the Town of Reading, a municipal corporation, acting by and through its Board of Selectmen, with an address at 16 Lowell Street, Reading, Massachusetts 01867, (the "Town"). BACKGROUND 1. Contingent upon the Reading Town Meeting adopting, without amendment and by no later than December 20, 2007, the Gateway'Smart Growth Overlay District ("GSGD") and the related proposed changes to the Business C District, the Owner intends to purchase and to redevelop 24.8 acres of land in the Town of Reading, Massachusetts (the "Property"). The Property, which is shown on Exhibit A attached hereto, is the former location of Addison Wesley Longman and is currently zoned for office and hotel use. 2. The Town is proposing a rezoning of a portion of the Property as a new Smart Growth Zoning District bylaw pursuant to General Laws, Chapter 40R and the regulations thereunder to affect approximately 10 acres of the Properly. The zoning, would govern a proposal made by the Owner to develop a multi-family residential project on said portion of the Property to contain 202 residential units (the "Project"). The proposed Smart Growth Zoning District bylaw (the "40R Zoning") is consistent with the goals identified in the Reading Community Development Plan and the Reading Master Plan. 3. The proposed 40R Zoning has been submitted to, and preliminary approval has been granted by, the Massachusetts Department of Housing and Community Development ("DHCD") and is attached hereto as Exhibit B: The proposed bylaw will be considered by the Special Town Meeting to be held on December 10, 2007 and is Article 4 on the Warrant. Thereafter, if the bylaw is approved by Town Meeting, the same also must be finally approved by DHCD and by the .Massachusetts Attorney General. Assuming such approvals, the Owner plans to seek all other required permits and approvals for the Project. 4. The Owner also will be seeking approval by Town Meeting of a related, separate zoning amendment involving certain changes within the Business C District affecting the Property. These changes will add as permissible uses townhomes and senior independent housing within the Business C District, as well as make certain dimensional and other changes. The proposed amendment to the Business C District is attached hereto as Exhibit C and is Article 5 on the Warrant. Thereafter, if both bylaw changes are approved by Town Meeting, the same must also be finally approved by the Massachusetts Attorney General. Assuming such approval, the Owner plans to seek all other required permits and approvals for the redevelopment of the Property, including the Project (the "Required Permits"). The redevelopment of the Property, including the Project, shall be hereinafter referred to as " the redevelopment of the Property". 5. In connection with the Town's consideration of the Project and the processing. of the Town's application to DHCD for approval of the 40R Zoning, the Town and the Owner have agreed on certain mitigation measures for the redevelopment of the Property. These obligations will become effective and binding upon the Owner only if Town Meeting, DHCD and the Massachusetts Attorney General, as and to the extent required, each approves Exhibit B and Exhibit C in the form attached, and the Owner secures the Required Permits for the Project, including the final building permit. 6. Now, therefore, for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Owner, for itself and its successors and assigns, as owner of the Property, and the Town, agree that in the event all approvals described in Section 5 above are obtained by the Owner, the following obligations shall be binding upon the parties. ARTICLE I PROJECT MITIGATION The Owner shall undertake the mitigation measures described in this Article.1 for the redevelopment of the Property in the manner and at the times set forth below. 1.1 Traffic. The Owner shall pay for and shall construct all off-site traffic mitigation for the redevelopment of the Property, including the costs of engineering and permitting. The construction of such traffic improvements shall be substantially completed prior to the opening of the Project, except for (a) incomplete. items which the Owner will bond at the request of the Town, and (b) any traffic improvements that the Town requests be deferred or not implemented. The Owner shall not be obligated to pay for any traffic improvements for which public funds shall be available or which shall be necessitated by other projects. The scope of traffic mitigation improvements that will be provided is generally shown on Exhibit D attached hereto prepared by VHB, Inc., subject to such changes as will result from completion of the local and state permitting process for the redevelopment of the Property, including review by MassHighway. The Owner also agrees to support the Town's processing of an application for a Suburban Mobility grant or any similar grant that will enable the Town to develop and/or improve access to public transportation in the region, ridesharing, and other efforts to reduce traffic demand. -2- 1.2 Drainage and Stormwater. As part of its permitting for the redevelopment of the Property, the Owner shall comply with the stormwater regulatory requirements of the Massachusetts Department of Environmental Protection, including incorporation of best management practices. 1.3 Sewer Connection. During the local plan review. process, the Owner shall cooperate with the Town in evaluating the operation and adequacy of the sewer system servicing the Property, the so-called Sturges Pumping Station. and the force main pipe downstream of the pumping station. The Owner shall make payments to the Town in accordance with the Town's policy on sewer inflow and infiltration as provided herein. These payments ( the "I & I Payments" ) will be calculated based on the formula ( the " I & I formula") of $4.00 multiplied by twice the net additional sewer flow (in gallons per day) for the proposed redevelopment of the Property estimated to be approximately $450,000 In addition to the I & I Payments, the Owner shall provide up to $50,000 in a one time payment of supplemental funds if needed to address sewer inflow and infiltration problems, sewer capacity limitations and to make enhancements to the public sewer mains within the Town. Collectively, the I & I Payments and such supplemental funds shall be referred to as the "Sewer Payments". At the time of issuance of the building permit for the first new building on the Property, the Owner shall pay to the Town such portion of the Sewer Payments as is necessary to complete improvements to the sewer system required to provide adequate capacity for the redevelopment of the Property ( the " Initial Sewer Payment" The Initial Sewer Payment shall be applied to the I & I Payments otherwise due for each new building on the Property until the Initial Sewer Payment is exhausted. Thereafter, for each new building, or portion thereof, the I & I Payments pursuant to the I & I formula shall be payable to the Town upon issuance of certificates of occupancy for each such new building. By way of example only, if the Initial Sewer Payment is $350,000, and the I & I formula for the first new building on the Property would result in an I & I Payment of $264,000, then there would be no I & I Payment due for the first building. The $86,000 difference between the Initial Sewer Payment and the I&I Payment for the first building would -be applied toward the I&I Payments otherwise due for such subsequent building(s). 1.4 MWRA Water Connection. The Owner shall be responsible for the MWRA water system buy-in fees associated with the provision of water service to the redevelopment of the Property payable on a building-by-building basis upon issuance of certificates of occupancy for each building. Such buy-in fees shall be $5.21 multiplied by 110% of the net additional sewer flow ( in gallons per day ) from such building. -3- 1.5 Peer Review Consultants. At the time of the submittal of the application for Plan Approval required by the GSGD, the Owner shall deposit with the Town of Reading Treasurer the amount of $25,000 (the "Plan Escrow Account") which may be used pursuant to G.L. c. 40R, §11 by the Community Planning and Development Commission ("CPDC") to engage such consultants as a traffic engineer, civil engineer, attorney, landscape architect, architect, urban designer, lighting consultant, and other reasonably necessary consultants to provide technical assistance during the review of the application for Plan Approval. The Plan Escrow Account shall be replenished by the Owner at the request of the CPDC when the balance falls to $5,000.00. Any balance remaining in the Plan Escrow Account after such Plan Approval shall be refunded to the Owner. 1.6 Installation of "Gatewav to Reading" Sign and/or Structure/Landscaping on Main Street. Prior to issuance of a certificate of occupancy for the Project, the Owner shall make a payment of up to $10,000 to the Town as the Owner's contribution toward the Town's cost to erect a "Gateway to Reading" sign and/ or structure/landscaping on Main Street in the general vicinity of the Property. The Town shall be solely responsible for the permitting, land acquisition, design, installation and maintenance of such sign and/or structure/landscaping. The Owner's funds shall be held in escrow by the Town solely for the foregoing purposes and shall be returned to the Owner, with interest, if said sign and/or structure/landscaping is not erected or installed within two (2) years from the date of the Town's receipt of such payment. 1,7 Green Design and Construction. The Town encourages the Owner, and the Owner will use reasonable efforts, to design and to construct the Project using the best current green and sustainability practices, such as Energy Star or LEED. AR'T'ICLE 2 COMMUNITY BENEFITS 2.1 40R Pavments. The Owner shall assist the Town in the Town's processing of its application for incentive and density bonus payments from the Commonwealth of Massachusetts related to the 40R Zoning. It is estimated that the Town shall receive up to $350,000 from the Commonwealth of Massachusetts upon adoption of the 40R Zoning, in addition to $3,000 per unit of residential development upon issuance of building permits, resulting in a total payment to the Town of up to $956,000. It is expressly recognized that these payments are contingent upon funding of the 40R program by the Commonwealth of Massachusetts and are not the responsibility of the Owner. It is also understood that expenditure of these funds is at the sole discretion of the Town and the expenditure of such funds shall not be construed in any way as relieving the Owner of its financial obligations hereunder relative to mitigation of the impact of the Project. -4- 2.2 Affordable Housing. In order to meet the Town's goals for affordable housing, the 40R Zoning provides in Section 4.11.10.1 for the manner in which the Owner shall satisfy the affordability requirement for the Project. The Owner and Town recognize that meeting the Town's goals for providing affordable housing is an important part of the proposed Project. The Affordable Housing Restriction required by Section 4.11.10 of the 40R Zoning shall be for the period of time set forth in Section 4.11.10.6.3. If said Affordable Housing Restriction is not in perpetuity, the Owner agrees to provide the Town with twelve (12) months' notice prior to each date of expiration of said Restriction to enable the Town to take any actions legally available to the Town further to extend said Restriction. 2.3 Jacob Way. As part of the redevelopment of the Property', the Owner shall upgrade Jacob Way, a Town-owned roadway. The upgrade shall include repaving, curbing, drainage, sidewalks and utility improvements. In the alternative, the Town is willing to recommend to Town Meeting that the Town abandon all of its right, title and interest in Jacob Way, and to convey the same to the Owner in fee for its private use and maintenance, provided that the Owner is able to utilize Jacob Way for frontage legally to subdivide lots pursuant to its redevelopment plan. The Town is also willing to consider a different name for Jacob Way if requested by the Owner. . 2.4 Community Access. An important objective of the Town is to provide pedestrian access throughout the Property with connections to South Street . Walking paths and some green spaces throughout the Property shall be available for the use and enjoyment of residents of future buildings within the Property as well as the surrounding residential neighborhood. The Owner has agreed to provide such access and connections and to incorporate and to encourage pedestrian use within the Project. At its sole expense, the Owner shall build and maintain such pathways and shall indemnify and hold harmless the Town relative to any claims for personal injury or property damage arising out of their use. ARTICLE 3 OBLIGATIONS OF READING 3.1 Permits and Approvals. Town Officials shall support the 40R rezoning and the zoning bylaw amendments for the Business C District. The Owner shall submit the subsequent applications for Site Plan approvals -for the redevelopment of the Property to the Community Planning and Development Commission, and to any other agencies, Boards, Committees, or Commissions with jurisdiction over the redevelopment of the Property, and the Town shall expeditiously process all such applications. The Town shall fully cooperate in the processing of all other necessary permits and approvals from federal, state and local bodies required for the approval of the redevelopment of the Property. -5- 3.2 Financial Assistance. Town Officials directly shall seek, and assist the Owner in seeking, any available public funding to offset the cost of off-site mitigation for the redevelopment of the Property. The cost of any such applications shall be borne by the Owner. 3.3 Utilitv Reauirements. The Town shall support and shall expeditiously process applications by the Owner for all necessary utility connections for the redevelopment of the Property. 3.4 Appeals. If a lawsuit is filed by a third party challenging the 40R Zoning, the Business C zoning amendments, any plan approval thereunder, or any other permit or approval issued to the Owner by the Town for the Project, the Town shall defend any such appeal and the Town shall oppose any such lawsuit. The Owner shall join the Town in defending and opposing the same and pursuing a prompt judicial determination with respect to any such challenge. 3.5 Land Takings. If any land owned by third parties is required for off site traffic mitigation work or for any other mitigation work required for the redevelopment of the Property, the Town shall request that Town Meeting take such land by eminent domain, provided that the Owner indemnifies the Town for all costs of the same. 3.6 Overall Cooperation. In addition to the foregoing specific matters, the Town shall also cooperate with any other requests by the Owner which are reasonably related to the Owner's efforts to effectuate the redevelopment of the Property. ARTICLE 4 MISCELLANEOUS 4.1 Escrow. This Agreement shall be held in escrow by Town Counsel and shall not become effective or be delivered to the Town unless and until the December 10, 2007 Annual Town Meeting, DHCD, and the Massachusetts Attorney General, as applicable, each has approved Exhibit B and Exhibit C hereto. Upon the last to occur of such events, upon five (5) business days' notice to the Owner, Town Counsel shall deliver one fully-executed copy of this Agreement to the Town and one fully-executed copy to the Owner. 4.2 Notice to Lenders. If the Town gives written notice to. the Owner of a default under this Agreement with respect to any obligation of the Owner, the Town shall simultaneously furnish a copy of such notice to the mortgagee(s) of record of the Project so long as the Town has prior written notice of the identity and address of each such lender. If the Owner has received notice from the Town of a default under this Agreement by the Owner and such breach is not cured by the Owner before the expiration of the period provided therefore, a lender may, but shall not be obligated to, cure any such breach upon giving written notice of its intention to do so to the Town -6- within sixty (60) days after lender receives such notice of breach, and, if the lender chooses to cure such breach, the lender shall proceed with due diligence to cure the same. To facilitate the operation of this section, the Owner shall at all times provide the Town with an up-to-date list of the names and address of all lenders for the Project. Any lender may notify the Town in writing of its address and request that the provisions of Section 4.5, as they relate to notices with respect to the Project hereunder, apply to it. The Town agrees to comply with any such request. 4.4 Mediation. If a dispute arises concerning the Owner's performance hereunder, prior to resorting to court, the parties first shall provide notice to each other and shall meet and work in good faith either directly or with the assistance of a mutually agreed third parry to attempt to resolve their dispute in a prompt manner. However, if any such dispute is not resolved as aforesaid within sixty (60) days after the notice required above, either party shall be free to seek a judicial remedy. 4.5 Notices. Any notice hereunder shall be in writing and shall be deemed duly given if mailed by certified or registered mail, postage and registration charges prepaid; by overnight delivery service with receipt; or by hand delivery to the parties at the addresses set forth below: If to the Town: Board of Selectmen c/o Town Manager Reading Town Hall 16 Lowell Street Reading, Massachusetts 01867 If to the Owner: c/o National Development 2310 Washington Street Newton Lower Falls, Massachusetts 02462 Attention: Theodore R. Tye and to: National Development 2310 Washington Street Newton Lower Falls, Massachusetts 02462 Attention: Richard P. Schwartz, General Counsel Any notice that is sent by U.S. Mail shall be deemed given on the third day after deposit in the U.S. Mail; any notice that is sent by overnight delivery service shall be deemed given on the next business day after deposit with such service; and any notice that is sent by hand delivery shall be deemed given on the day of actual receipt. 4.6 EstonDel Certificate. Upon ten (10) days' written request from the Owner, the Town, within an additional ten (10) days, shall execute a certificate in a form acceptable for recording with the Middlesex Registry of Deeds that is addressed to the requesting party or a lender, title insurance company, prospective purchaser, -7- tenant or other interested party ; confirming' that this Agreement is in full force and effect (or, if not, that this Agreement has terminated) and certifying to the best of its knowledge that the Owner is in compliance with its obligations hereunder or, if not, specifying the respects in which the Owner is not in compliance or specifying the obligations which are unfulfilled. 4.7 Successors and Assigns. The provisions of this Agreement shall run with the land and shall be binding upon the Owner and its successors and assigns as owners of the Property and shall inure to the benefit of the Town and its successors and assigns. An owner of the Property shall be liable hereunder only for any breaches occurring during the period of its ownership of the Property or any portion thereof. 4.8 The Town's Independent Powers. Nothing contained in this Agreement shall in. any way negate, limit or restrict the Town's jurisdiction and authority over the redevelopment of the Property. This Agreement shall not bind nor affect the independent powers of any authority, agency, inspector or board of the Town including, without limitation, the Community Planning and Development Commission, the Board of Appeals, the Conservation Commission and/or the Building Inspector; provided, however, that any such actions shall be consistent with the terms of this Agreement. 4.9 Duration. Except as provided in this section below, this Agreement shall be enforceable for the maximum period permitted by applicable law. a. If the Town Meeting vote has not occurred on or before December 20, 2007, and/or if DHCD and the Massachusetts Attorney General have not approved Exhibit B and, as applicable, Exhibit C, within the time periods provided by applicable statutes and regulations, then the Owner may terminate. this Agreement upon ten (10) days' written notice to the Town, all copies of this Agreement shall be returned to the Owner, and the parties shall be in status quo ante as if this Agreement had never been executed. b. If the Owner does not obtain all .the Required Permits for the Project in a form acceptable to the Owner, or if the Owner determines that, in its judgment, the Required Permits for the Project will not be issued in a timely manner or in a satisfactory form, or if any permit, approval or legislative action for the Project or development elsewhere on the Property is appealed, the Owner may terminate this Agreement upon ten (10) days' written notice to the Town. C. Upon the full performance by the Owner of all of its obligations hereunder, the Town shall, at Owner's request, issue a statement in a form appropriate for recording with the Middlesex Registry -8- of Deeds that all of the terms of this Agreement have been satisfied and that this Agreement is of no further force and effect. 4.10 Amendments. This Agreement may be amended only by an instrument in writing signed by each parry hereto. 4.11 Governing Law. This Agreement shall be governed by the laws of the Commonwealth of Massachusetts. 4.12 Severabilitv. If any term or provision of this Agreement, or the application thereof to any person or circumstance shall, to any extent, be invalid, inoperative or unenforceable, the remainder of this Agreement, or the application of such term or provision to persons or circumstances other that those as to which it is held invalid, inoperative or unenforceable, shall not be affected thereby; it shall not be deemed that any such invalid, inoperative or unenforceable provision affects the consideration for this Agreement; and'each term and provision of this Agreement shall be valid and enforceable to the fullest extent permitted by law. 4.13 No Recording. If the Town records this Agreement, it shall ipso facto become null and void, provided that the parties shall record a Notice of Development Agreement in the form of Exhibit E hereto when this Agreement is released from escrow pursuant to Section,4.1 hereof. 4.14 Headings. The headings used in this Agreement are for convenience of reference and shall in no way define, increase, limit or describe the scope or intent of any provisions hereof. 4.15 Time of the Essence. All times set forth herein shall be of the essence. 4.16 Counterparts. This Agreement may be executed in any number of counterparts, which, when taken together, shall constitute one and the same instrument. [Signatures appear on following page.l -9- IN WITNESS WHEREOF, the Owner and the Town have executed this Agreement under seal as of the day and year first above written. TOWN OF READING By: Its Board of Selectmen James Bonazoli, Chairman Steven Goldy, Vice Chairman Ben Tafoya,,Secretary Camille Anthony Richard Schubert A Majority of the Board of Selectmen OWNER NATIONAL DEVELOPMENT ACQUISITIONS, LLC a Massachusetts limited liability company BY: NDNE Real Estate, Inc., its Manager By: Name: Theodore R. Tye Title: Executive Vice President -10- NOTICE OF DEVELOPMENT AND INFRASTRUCTURE AGREEMENT The Town of Reading (the "Town") and National Development Acquisitions, LLC have entered into a Development and Infrastructure Agreement (the "Agreement") dated as of December 4, 2007, affecting premises in Reading, Middlesex County, Massachusetts, formerly known as the Addison Wesley Longman Campus, containing approximately 24.8 acres of land and shown on Exhibit A attached hereto. The Agreement sets forth certain rights and obligations of the parties with respect to the redevelopment of said property. Without limiting the foregoing, Section 2.2 of the Agreement addresses Affordable Housing and provides, inter alia, as follows: The Affordable Housing Restriction required by Section 4.11. 10 of the 40R Zoning shall for the period of time set forth in Section 4.11.10.6.3. If said Affordable Housing Restriction is not in perpetuity, the Owner agrees to provide the Town with twelve (12) months' notice prior to each date of expiration of said Restriction to enable the Town to take any actions legally available to the Town further to extend said Restriction. A complete copy of the Agreement, with all exhibits thereto, is on file with the office of the Reading Town Clerk and the Reading Community Planning and Development Commission. [Signatures appear on following page.] IN WITNESS WHEREOF, the parties have* executed this Notice of Development and Infrastructure Agreement under seal as of this 4th day of December, 2007. TOWN OF READING By: Its Board of Selectmen James Bonazoli, Chairman Steven Goldy, Vice Chairman Ben Tafoya, Secretary Camille Anthony Richard Schubert A Majority of the Board of Selectmen OWNER NATIONAL DEVELOPMENT ACQUISITIONS, LLC BY: NDNE Real Estate, Inc., its Manager By: Name: Theodore R. Tye Title: Executive Vice President COMMONWEALTH OF MASSACHUSETTS Middlesex, ss. On this 4th day of December, 2007, before me, the undersigned notary public, personally appeared , proved to me through satisfactory evidence of identification, which was , to be the person whose name is signed on the preceding or attached document, and acknowledged to me that (he) (she) signed it voluntarily for its stated purpose as for the Town of Reading. Notary Public. My commission expires: COMMONWEALTH OF MASSACHUSETTS Middlesex, ss. On this 4th day of December, 2007, before me, the undersigned notary public, personally appeared Theodore R. Tye, proved to me through satisfactory evidence of identification, which was. , to be the person whose name is signed on the preceding or attached document, and acknowledged to me that (he) (she) signed it voluntarily for its stated purpose as Executive Vice President of NDNE Real Estate, Inc., Manager of National Development Acquisitions, LLC. Notary Public My commission expires: