Loading...
The URL can be used to link to this page
Your browser does not support the video tag.
Home
My WebLink
About
2005-12-20 Board of Selectmen Packet
Hechenbleikner, Peter From: Schultz [bodiam@comcast.net] Sent: Monday, December 12, 2005 10:18 AM To: Hechenbleikner, Peter Cc: ben@planetnw.com Subject: RE: Yellow Line and Speed Limit Petitions SouthNValnut Streets Peter and Ben: Thank you both for responding to my last email. Ben, I have included Peter's response below regarding when the Selectmen can hear this issue, as it varied from yours. Either this Tuesday or next is fine with me, just let me know. Regarding Peter's position on the issue, as described in the email below and on other occasions, I certainly appreciate and respect his opinion. He's given a lot of good service to the town over the years. The difficulty for myself and the vast majority of people in the neighborhood is that we respectfully disagree with his recommendation. This is why we took the time to formulate an organized response to his position and are attempting to have the selectmen reconsider. This neighborhood is one of the most established in Reading and the road has even been formally designated as historic. We feel the yellow line and the higher speed limit erodes this character and makes the area less safe. Specifically regarding the yellow line, everyone acknowledges that it was an unfortunate mistake. Nonetheless, I don't understand how painting it black is such a disagreeable issue. Every time I have seen a black line painted over a yellow line, over time the two lines wear unevenly. Thus, the effect is to mute the look of both lines as they wear away. I know Peter's position is that the yellow line will wear away over 1 winter, but in all my years living in New England, my experience is that it takes many years for a line to effectively wear away. Ultimately, the selectmen may disagree with the neighborhood's position and leave the line and the speed limit as is. Our goal is not to create an adversarial position with the town, particularly with Peter on this issue. We simply enjoy the neighborhood and want the best for it, as we live in it on a daily basis. Any true adversarial position will probably be saved for the proposed Addison Wesley project! Thanks again for your time and have a great holiday. Take Care - Erich Y. Schultz -----Original Message----- From: Hechenbleikner, Peter [mailto:phechenbleikner@ci.reading.ma.us] Sent: Sunday, December 11, 2005 4:59 PM To: bodiam@comcast.net; Reading - Selectmen Subject: RE: Yellow Line and Speed Limit Petitions South/Walnut Streets Erich Anything that is discussed by the Board is done in open session unless it involves litigation or labor negotiations. The Board of Selectmen gets a massive amount of mail and emails, as you can tell. As I've noted to some of your neighbors (I can't recall all of them) the yellow lines were installed by mistake. It seems that some feel that it was in some way connected with the Pearson proposal - it was not. The best thing to do with the lines is let the winter weather take care of them - with the plowing and sanding, they will weal off. If one painted them black as suggested, then there are 2 coats of paint to wear off - the black overcoat, and the yellow. That is what I have advised the Board. The Board may take this matter up in their liaison reports at eh beginning of their next meeting on December 20. They are also meeting on December 13, but for the sole purpose of discussing water supply. I hopes this helps explains my position on this matter. Best wishes for a happy holiday 1 Pete From: bodiam@comcast.net [mailto:bodiam@comcast.net] Sent: Sat 12/10/2005 11:13 AM To: Reading - Selectmen Subject: Yellow Line and Speed Limit Petitions South/Walnut Streets Hello Thank you for listing my email regarding the yellow line and speed limit petitions on last weeks agenda. I am curious as to what happens next. I also was wondering why the email is not discussed or addressed in open session. What decides what occurs in closed versus open session? As the number of names on the petition suggest, this is an important issue to the neighborhood and we want to make sure the issue is addresed. I am available via email or telephone to discuss (617.733.5237). Thank you for the attention to this matter. Take Care - Erich Schultz. ~ bz 2 TOWN OF READING 4- Voted: The-Traffic Rules and Regulations adopted by the Board of Selectmen on March 28, 1995, for the Town of Reading, are hereby amended by-adding to Appendix A-14, 6.24, the following regulations (s) . SPECIAL SPEED REGULATIONS SOUTH STREET - EASTBOUND Beginning at the junction of West South Street 0.20 miles at 25 miles 0.17 miles at 35 miles 1.08 miles at 30 mil junction of Hopkins Street; the total Street, thence easterly on per hour per hour es per hour ending at the distance being 1.45 miles. SOUTH STREET - WESTBOUND Beginning at the junction of Hopkins Street, thence westerly on South Street 1.08 miles at 30 miles per hour 0.17 miles at 35 miles per hour 0.20 miles at 25 miles per hour ending at the junction of West Street; the total distance being 1.45 miles. I_j)rA(jS+ DATEJOF PASSAGE SELEC MEN'S SIGUR vf, v v ~.1 ~I 1 TN CLEl OF READING TOWN CORPORATE SEAL 63 Page 1 of 1 Hechenbleikner, Peter From: Murphy, Tom Sent: Monday, December 12, 2005 2:31 PM To: Hechenbleikner, Peter Subject: RE: South Street We had Mass Highway conduct a speed zone study within the past year and a half and they came out with the regulation. -----Original Message----- From: Hechenbleikner, Peter Sent: Monday, December 12, 2005 2:06 PM To: Murphy, Tom Subject: South Street When was the current speed limit set? Ibq 12/12/2005 PROCLAMATION ARBOR DAY WHEREAS: In 1872, J. Sterling Morton proposed to the Nebraska Board of Agriculture that a special day be set aside for the planting of trees; and WHEREAS: This holiday called Arbor Day was first observed with the planting of more than a million trees in Nebraska, and Arbor Day is now observed throughout the nation and the world; and WHEREAS: Trees reduce the erosion of our precious topsoil by wind and water, cut heating and cooling costs, moderate the temperature, clean the air, produce oxygen and provide habitat for wildlife; and WHEREAS: Trees are a renewable resource giving us paper, wood for our homes, fuel for our fires and countless other wood products; and WHEREAS: Trees in our Town increase property values, enhance the economic vitality of business areas, beautify our community, and wherever they are planted are a source of joy and spiritual renewal; and WHEREAS: Reading has been recognized as a Tree City, U.S.A. by the National Arbor Day Foundation for 20 years, and desires to continue its, tree-planting ways. NOW, THEREFORE, WE, the Board of Selectmen of the Town of Reading, Massachusetts do hereby proclaim April 29, 2005 as Arbor Day in the Town of Reading, and urge all citizens to celebrate Arbor Day and to support efforts to protect our trees and woodlands, and plant trees to gladden the heart and promote the well being of this and future generations. THE BOARD OF SELECTMEN Camille W. Anthony, Chairman Richard W. Schubert, Vice Chairman Joseph G. Duffy, Secretary James E. Bonazoli Ben Tafoya 6,< Board of Selectmen Tracking Loa for Current Issues/Protects Date Issue/Project/ Identified Problem Resp. Select. Action Needed Follow-up Dept. Liaison Date . „ Traffic Issues designated by the Fielghbe*ee n and-step-si a Fa /t d 91x1 SaflbeFR I= Re a tc DPW Benazeli be able to 4 e pi"'., eed with Review by PT-T1. Es~eduled far $/5/95 shildFeR Reliee Duffy Beard of Sele&nen d!SGUSSIG Curtis and George BtFet Policy on Detours Ash Street at Main Develop a comprehensive traffic study for the Woburn Street, High Street, Lowell Street, 11/29/05 Main Street area Review by staff and SGhG I T-FaffiG assessment ease of pi s{F s TwR. MgR ARtheny € fellewing petted e€-epeFatien mearlR9 an ei way stop anel pawing Reighleerheed walk TwR. MgF ARtheny Residents-wotti"ke-step-en PTT- " at GuFtis €B at GeeFge T-wR. MgF ARtheRy GeeFge I ne I own Snoula nave an extablished policy on detours per Chief Cormeri's memo Twn. Mgr. Anthony Develop a draft as a Board of Selectmen policy, or as a TM working procedure 03/31/06, uaevelop a process to acquire land and build new connection directly between Ash and Main Street, eliminating the grade crossing Twn. Mgr. Anthony Engineeri ng Bonazoli Contact new property owner; work with MBTA 12/31/05, 12/31/06 12/16/2005 1 ' A k Board of Selectmen Trackina Loa for Current Issues/Protects Date Issue/Project/ Identified Problem Resp. Select. Action Needed Follow-up Dept. Liaison XXXX: MEW Date i: NO Development Proiects : uvernow or oetention Dasin - flooding has occurred in neighborhood during severe Follow up with developer; hire 1/1/90 Gazebo Circle storms Engineer Bonazoli F consultant 12131/05 Kelease of State t-unos - State has funded in previous 1/1/00 Pitman Bike Path park/recreation bond bill Planner Tafoya S Need for Town to access funds 06/30/06 i rarric stuay suDmiaea &-i 4-uo; Peer review complete by early October; Then schedule Board of Selectmen meeting with notice to 11/15/2005 1/1/05 Addison Wesley Complete Traffic Presentation - Planner Tafoya T public and 12-6-05. Anthony i own nas vireo alighting Lighting has impacted neighbors and consultant. Report to the Board of Jordan's Furniture due to height of fixtures Town Mgr. Bonazoli LiSelectmen 11/01/05 Status of 100% design submission and approval; determination of what if any items 1/1185 Downtown Imbrovemen will not be funded by the State Engineer Anthony MWRA-Buy in pplementat-water DPW Benaaeli uecioe a location ror me vvater Treatment Plant, or whether to buy in to MWRA in total for water Water Treatment Plant supply DPW Bonazoli No-6"Rs appear: to ee +ewn Bkatebeai,d Rafk available Manager Benazeli Downtown Parking lack of parking PTTF Tafoya Monitor and advocate for Reading's interest in keeping any improvements to the interchange Anthony & Rt. 128/1-93 Interchang(to a low impact for Reading Schubert Imagination Station Needs to be refurbished Recreation Bonazoli mow oo we avoia anotner gasoline spill impact on 1-93 Containment Reading's wellfields DPW Bonazoli RHA wants to demolish historical Town 75 Pleasant Street house Manager Tafoya 100 % Design October 14. MHD review. ENF submission. Tree Hearings. Bidding. Construction April 2006. 04/15/05 feF Review cost and benefot of plant location or full MWRA buy-in to be removed Draft regulations; meet with businesses; hold hearing Try to establish a citizens committee to take this on uonsuitant presentation to the Board of Selectmen on 10-18-05; follow up 2-17-06 MNA given the go aneao by the Board of Selectmen to build 4 units - house to be resolved at later date. RHA to develop paperwork for land swap. 02/28/06 12/31/051 ongoing 06/30/061 02/17/06 12/01/05 12/16/2005 2 qo-:,,- Board of Selectmen Trackina Loq for Current Issues/Proiects Date Issue/Project/ Identified Problem Resp. Select. Action Needed Follow-up Dept. Liaison Date Policies/Reaulations Tire & Town Write draft regulations for the 4/1/04 Petroleum Bylaw Regulations to be formulated Counsel Duffy H Board of Selectmen to consider 03/31/06 BOS delegated approval of stop Criteria and Plan need to be Stop Signs signs to Town Manager PTTF Anthony developed 03/31/06 Town Fino heirs and get approval or file Memorial Park Controversy over allowed uses Counsel Anthony a petition for a Cy Pres 11/01/05 Dogs Regulations Re: Dog Bites Health Anthony Develop draft bylaw 01/311061 currency only reguiatea oy CPDC - if Police are to enforce, it Town Develop draft bylaw for Board Hours of Construction needs a bylaw Manager Tafoya of Selectmen hearing 01131/06 Consideration of Bylaw requiring 9/9105 Solicitors registration of solicitors Police Duffy Hearing to get public input 01/03/06 Mandate landscaping Should the Town develop a bylaw 9/20/05 to save water or subdivision regulations Planning Tafoya 01/01/06 Review comments on section 5 and 6, and modify; also establish Update of Board of policies on local preference for Town 9127/05 Selectmen policies affordable housing. Manager Anthony 11/01105 Develop an Economic Master Plan will recommend an Development Economic Development Commission Commission Planner Tafoya roiicy on tsoard of Selectmen appointments - Town Accountant Tafoya Develop a process for addrssing the issue of dealing "lost" dogs on with 'lost' dogs when the Chief 1111105 weekends ACO is not available Cormier Duffy Develop strategies for the Substance Abuse community to address drug Town 12/13/05 Summit and alcohol abuse Manager Anthony Anthony Town Manager Revise form and get Board of and 1111/05 Evaluation Selectmen input Bonazoli Establish by bylaw or Board of Selectmen Police 03/01/06 Develop procedure 03131/OE Develop process - steering committee 12131/05 12/20/05 12/16/2005 3 cL3 Board of Selectmen Trackina Loa for Current Issues/Proiects Date Issue/Project/ Identified Problem Resp. Select. Action Needed Follow-up Dept. Liaison Date Citizen Complaints W20105 ct Peiise puffy t 4 GA 1 m Crosswalk - Summer'Abutter doesn't want it Town Ave. at Fairview anymore Manager Anthony Review with PTTF 12131/05 q&q 12/16/2005 4 ~G 60 CI1, 4 Arlington • Ashland • Bedford • Belmont • Boston • Braintree • Brookline 11~ J"A Burlington • Cambridge • Canton • Chelsea • Chicopee • Clinton Dedham • Everett • Framingham • Hingham • Holbrook • Leominster co MWTRAALexington Medford • Melrose • Milton • Nahant • Natick • Needham • Newton w ADVISORY O Northborougl Revere • Saugus • Somerville • South Hadley • Southborough • Stoneham (az~ BOARD Stoughton Watertown • Wellesley • Weston • Westwood • Weymouth • Wilbraham Wilmington November 29, 2005 Peter I. Hechenbleikner, Town Manager Town of Reading 16 Lowell Street Reading, MA 01867 Dear Mr. Hechenbleikner: Lynn • Lynnfield • Malden • Marblehead • Marlborough i • Norwood • Peabody • Quincy • Randolph • Reading • Swampscott • Wakefield Walpole • Waltham • Winchester • Winthrop • Woburn • Worcester ~s P-4 c:~ a a.tit C) tv In follow-up to our meeting on November 22nd, please find enclosed a resolution in . support of increased funding for the Commonwealth Sewer Rate Relief Fund, also known as Debt Service Assistance. This resolution is being sent to each governing body in the MWRA system for consideration. Funding for the Commonwealth Sewer Rate Relief Fund provides a direct benefit to MWRA communities and ratepayers who are struggling to afford the rising cost of water and sewer services. In FY06, the Legislature appropriated $12.5 million to the Debt Service Assistance line item, contributing to an MWRA rate decrease from 59% to 4.2%. With MWRA proposed rate assessments expected to top 40% over the next five years, Debt Service Assistance is more important. than ever. For these reasons, the Advisory Board is hopeful your Board of Selectmen will endorse the attached resolution and return the signed copy to the Advisory Board office at 11 Beacon Street, Suite 1010, Boston, MA 02108. The Advisory Board intends to submit the community resolutions to the Legislature as part of its Legislative Day scheduled for January 19, 2006. In addition to the resolution, please also find enclosed a Fact Sheet describing the Commonwealth Sewer Rate Relief Program in further detail, as well as a sample press release. Both items are intended to explain the importance of the Debt Service Assistance Program to interested parties, including the public. If you have any questions about the enclosed information, please do not hesitate to contact me at 617-742-7561. Additionally, I would be happy to attend a meeting of your Board of Selectmen to further discuss these issues. On behalf of the MWRA Advisory Board, I thank you for your attention to this matter and look forward to continuing to work with you to provide relief to ratepayers throughout the MWRA system. Sin erel y, Jose E. Favaloro, Executive Director M RA Advisory Board Joseph E. Favaloro, Executive Director L e 11 Beacon Street • Suite 1010 • Boston, MA 02108-3020 • Telephone: (617) 742-7561 • rax: (617) 742-4614 `B Website: www.mwraadvisorylioard.com • Email: mwra_ab@mwra.state.ma.us Resolution in Support of Increased Funding for the Commonwealth Sewer Rate Relief Fund Whereas, the Commonwealth Sewer Rate Relief Fund is a statewide program, providing over $60 million to 140 communities throughout the Commonwealth at its peak in 2002 and funded at $12.5 million in FY06; and Whereas, the MWRA has spent over $6.4 billion to date on capital projects and intends to spend an additional $1.3 billion over the next ten years; and Whereas, 62% of the MWRA's annual operating budget goes directly to pay outstanding debt; and Whereas, a recent study found that public investment in Boston Harbor has resulted in a radical transfonnation of the Boston waterfront that is providing economic benefit throughout the Greater Boston area, as well as a renewed recreational interest in the harbor islands and the return of marine life; and Whereas, a 2004 affordability analysis found rates in the MWRA service area, which includes 60 communities and over 2.5 million Massachusetts residents, are presenting a substantial social and economic burden to homeowners and are threatening the economic viability of the region; and Whereas, water and sewer rate assessments to communities are expected to increase $208 million over the next five years; and Wliereas, homeowners in the MWRA system already pay some of the highest rates in the nation; and Whereas, the Commonwealth Sewer Rate Relief Fund is a formula-driven program providing state funding up to 20% of the cost of a wastewater project thereby directly offsetting debt service costs and providing an immediate benefit to communities and residents; THEREFORE BE IT RESOLVED, that the Town of Reading supports funding the Commonwealth Sewer Rate Relief Fund based on the established fonnula, minimally including $25 million in Fiscal Year 2007; RESOLVED, that the Town of Reading supports fully funding the Commonwealth Sewer Rate Relief Fund based on the formula by Fiscal Year 2011. ADOPTED this SIGNED qb z Fact Sheet Resolution Supporting Increased Funding for the Commonwealth Sewer Rate Relief Fund o The Commonwealth Sewer Rate Relief Fund, also known as Debt Service Assistance, was created by the Legislature in 1993 (MGL Chapter 29, S2z) to mitigate escalating costs associated with sewer projects throughout the Commonwealth. o The Fund is available to any community in the state that meets the criteria for "eligible debt service,"-defined as permanent debt issued on or after January 1, 1990 for a term greater than five years for water pollution abatement control projects. Communities may receive funding up to 20% of the cost of a wastewater project. o In FY94, over $20 million was appropriated to the Commonwealth Sewer Rate Relief Fund, increasing to over $60 million in FY02. In FY03, in response to the state's fiscal crisis, the Fund was zero funded, resulting in a mid-year rate increase for MWRA communities. Over the past three years, the statewide fund has been restored to $5 million, $10 million and $12.5 million in FY04, FY05 and FY06 respectively. ® The MWRA's operating budget increases by $208 million between FY06 and FYI 1, primarily due to escalating debt. Today, 62% of the MWRA's operating costs go directly to debt service payments. 0 100% of the MWRA's wastewater debt and approximately 30% of its water debt (the cost of the MetroWest tunnel), meet the criteria for Debt Service Assistance. ® For every $4.72 million the MWRA receives in Debt Service Assistance in FY07, community assessments can be reduced roughly 1 o In addition to the Debt Service Assistance Program, which benefits public sewer systems, the Commonwealth provides a tax credit to Massachusetts residents who repair or replace their private septic system. o The Advisory Board supports funding the Commonwealth Sewer Rate Relief Fund in FY07 at a minimum of $25 million. qb 15' Contact: FOR IMMEDIATE RELEASE Date: XX Town/City of Calls For Increased Aid to Mitigate Water and Sewer Date Increases Boston-Board of Selectmen in the Town/City of this week joined fellow community leaders in the Massachusetts Water Resources Authority (MWRA) service area in endorsing a resolution calling on the Legislature and Governor to increase funding for the Commonwealth Sewer Rate Relief Fund, also known as Debt Service Assistance. The resolution calls for a dramatic increase in the Fund for FY07 to $25 million, up from $12.5 million appropriated in FY06, and urges full funding of the program by FYI 1. According to the MWRA Advisory Board, the entity charged with representing the 60 communities in the MWRA system, debt service payments make up 62% of the MWRA's operating costs and are projected to grow to nearly two-thirds of all current expenses over the next five years, as more and more payments on borrowings come due. One-hundred percent of the MWRA's wastewater debt and approximately 30 percent of its water debt meet the criteria for Debt Service Assistance so even a modest increase in the program would provide a significant benefit to MWRA communities, potentially cutting community assessments in half. "Homeowners in the MWRA system are paying some of the highest water and sewer rates in the country and the impact is hard-felt," said the [town] Board of Selectmen in a joint statement. "Debt Service Assistance provides a direct benefit to these residents and should be considered a critical component in the development of a sound rate relief strategy." Created in 1993 by the Legislature, the Commonwealth Sewer Rate Relief Fund mitigates the financial impact of sewer projects in communities by covering up to 20% of a project's debt service costs. In 1994, over $20 million was appropriated to the Fund. That number increased through the 1990's and in FY02, over $60 million was appropriated, providing critical relief to 140 communities throughout the Commonwealth. In FY03, as a result of the state's fiscal crisis, the program was zero- funded. Since then, it has seen a gradual increase, receiving $5 million, $10 million and $12.5 million over the last three fiscal years. Based on MWRA projections, the Advisory Board estimates the agency will be eligible for approximately $70 million in Debt Service Assistance in FYI 1. La Y i 2 Zo'a~ eG 6U C,r1~ s MWRA ce „q a ADVISORY o c BOARD ~z News O e s V A publication of the MWRA Advisory Board , December 2005 Communities Receive Debt Service Assistance Resolution Advisory Board Review Prompts Changes to Fringe Rate Assessment In follow-up to a slate of meetings with local officials throughout its system, Advisory Board staff released to communities last week a resolution calling for a renewed commitment to funding for the Commonwealth Sewer Rate Relief Fund, also known as Debt Service Assistance (DSA). The Fund, created by the Legislature in 1993, provides critical relief to communities throughout the Commonwealth who are facing escalating debt service costs resulting from sewer projects. Citing specific benefits of the program, the resolution urges the Legislature and Governor to minimally fund the program at $25 million in FY07, with full-funding to be achieved by FYI 1. The Advisory Board intends to submit the signed resolutions to the MWRA Legislative Caucus, as well as House and Senate Leadership, at its Legislative Day on January 19, 2006 in Boston, coinciding with the regularly scheduled Advisory Board meeting. Staff hopes to have received signed copies of the document from each of the 60 cities and towns that make up the Advisory Board by that time. Copies of the Resolution and accompanying Fact Sheet are available on the Advisory Board's website. Waiver Language Moves to Conference Thanks to continued effort by the MWRA Legislative Caucus, led by its Chainnan, Representative Ron Mariano (D-Quincy), language exempting the Water Supply Protection Trust from an indirect ' cost assessment has successfully moved through both the House and Senate. The language is contained in a supplemental budget, which is currently under review by a Conference Committee, comprised of members of both branches and designed to iron out problems between the House and Senate versions of the bill. The language authorizing the waiver is not subject to Conference Committee discussions and thus, will be contained in the final version of the supplemental budget that will eventually go before the Governor. Earlier this month, the state's Department of Conservation and Recreation (DCR) was directed by the Office of the State Comptroller to correct its payroll accounts to exclude seasonal employees from the line item assessed fringe benefits. The move saves the MWRA $10,450 so far in FY06, with additional savings coming this year and in future years. The State assesses the MWRA annually for' costs associated with health care, retirement and terminal leave of DCR watershed employees. These costs, referred to as fringe, are assessed as a percentage of the total personnel line item, which has historically included seasonal employees. The Advisory Board maintains the MWRA should be assessed for actual costs associated with fringe, rather than a percentage of the line item. Earlier this year, the Advisory Board hired Daniel Dennis & Co., LLP, a Boston-based accounting fnnn, to review the way in which the fringe rate is calculated. The directive from the State Comptroller comes as a result of this ongoing review and is a small victory in a continued effort to establish a fair and justifiable means of assessing fringe. Federal SRF Program Slated for Cuts As part of a larger Rescission Package submitted by President Bush in October, Capitol Hill is currently considering whether to cut $166 million from the Clean Water State Revolving Loan Fund (SRF) Program. The cut is one of many proposed mechanisms aimed at creating funds to assist with hurricane recovery efforts in the aftermath of Hurricanes Katrina and Rita. The SRF program provides federal aid to communities to build and repair sewage treatment plants. In FY06, Congress approved $900 million for the program. The entire package is currently under consideration by the House and Senate with the hope being to have a proposal to the President by the end of the month. Upcoming Meetings/Events December 14- MWRA Board of Directors Rates Suinmit-10:00 am in Charlestown Full Board Meetine-1:00 pm in Charlestown January 11- MWRA Board of Directors Meeting 10:00 am in Charlestown January 13- Advisory Board Executive Committee Meeting 8:30 am at Advisory Board office If you have any questions regarding topics raised in this newsletter or any other MWRA issue, please contact: Andrea Briggs, Govemment/Media Coordinator ■ Phone: 617-742-7561 • Fax: 617-742-4614 • Email: andrea.briggs@mwra.state.ma.us Web Site: http://www.mwraadvisoryboard.com qt5o` TABLE OF CONTENTS PAGE INTRODUCTORY LETTER 1 INTRODUCTION 3 FOLLOW-UP ON PRIOR YEAR RECOMMENDATIONS: 1. Implement Regular Departmental Internal Audits 3 2. Submit Timely Requests for State Chapter 90 Reimbursements 4 3. Improve Controls - School Kindergarten Program 4 CURRENT YEAR RECOMMENDATIONS: 4. Develop Ambulance Billing Write-Off Policy 5 5. Improve Controls - Assessing Office 5 6. Improve Controls - Athletic Revolving Accounts 5 7. Periodically Discuss Fraud Prevention With Employees 6 8. Improve Controls - School Lunch Program 6 4GL To the Board of Selectmen Town of Reading, Massachusetts We have audited the financial statements of the Town of Reading, Massachusetts as of and for the year ended June 30, 2005 and have issued our report thereon dated August 30, 2005. As part of our audit, we made a study and evaluation of the Town's system of internal accounting control to the extent we considered necessary to evaluate the system as required by generally accepted auditing standards. Under these standards, the purpose of such evaluations are to establish a basis for reli- ance on the system of internal accounting control in determining the nature, timing and extent of other auditing procedures that are necessary for expressing an opinion on the financial statements. The management of the Town of Reading, Massachusetts is responsible for establishing and maintaining a system of internal accounting control. In fulfilling this responsibility, estimates and judgments by them are required to assess the expected benefits and related costs of control procedures. The objectives of such a system are to provide reasonable, but not absolute, assurance that assets are safeguarded against loss from unauthorized use or disposition, and that trans- actions are executed in accordance with required authorization and recorded prop- erly to permit the preparation of financial statements in accordance with generally accepted accounting principles. Because of inherent limitations in any system of internal accounting control, errors or irregularities may still occur without being detected. Also, projection of any evalu- ation of the system to future periods is subject to the risks that procedures may become inadequate because of changes in conditions or that the degree of com- pliance with the procedures may deteriorate. yc3 Our study and evaluation was not designed for the purpose of expressing an opinion of the internal accounting control structure and would not necessarily disclose all weaknesses in the system. However, as a result of our study and evaluation, and in an effort to be of assistance to the Town, we are submitting for your consideration a number of comments and recommendations intended to improve operations and internal accounting control. After you have had an opportunity to consider our comments and recommendations, we would be pleased to discuss them with you. Andover, Massachusetts August 30, 2005 qCq 2 INTRODUCTION: We would like to commend the Town for implementing many of our prior year recommendations during fiscal year 2005. However, the following section summarizes prior recommendations that have not been fully implemented, that we feel are still worthy of consideration. FOLLOW-UP ON PRIOR YEAR RECOMMENDATIONS: 1. Implement Reaular Departmental Internal Audits Prior Year Issue: Currently, the Town does not perform regular departmental internal audits. Internal audits compliment the annual independent audit and provide impor Cant oversight over departmental accounting records throughout the year. Specific internal audit steps should include, but not be limited to: • Cash receipt monitoring • Grant eligibility • Chapter 30B compliance • Compliance with applicable Town policies and procedures Current Year Status: During fiscal year 2005, the Town Accountant's Office began conducting departmental internal audits and reviewing cash receipt accounting records, as well as reviewing compliance with applicable Town policies and proce- dures. However, we noted that grant eligibility and Chapter 30B compliance were not included during these audits. Further Action Needed: We recommend the Town's Accounting Office continue to perform periodic internal audits of the Town's departmental receipt accounting records and adherence to applicable Town policies and procedures. In addition, we recommend the Town include grant eligibility and Chapter 30B compliance during the departmental internal audits. This will result in improved over sight and should reduce the risk of errors or irregularities occurring and going undetected. NHS 3 2. Submit Timely Reauests for State Chanter 90 Reimbursements Prior Year Issue: State Chapter 90 (Highway) reimbursement requests were not always performed in a timely manner during fiscal year 2004. As a result, the Town's General Fund cash was used to finance these activities. Timely reimbursement of expenditures is essential to ensure an adequate cash flow. In addition, the Commonwealth reimburses on a first come/first served basis, which could result in significant delays in receiving reimbursements. Current Year Status: This issue has not been fully resolved. Further Action Needed: We continue to recommend that requests for Chapter 90 reimbursement be submitted in a timely manner to ensure prompt payment by the Commonwealth, improve the Town's cash flow, and maximize certified free cash at year-end. 3. Improve Controls - School Kindergarten Proaram Prior Year Status: During our review of the School Kindergarten Program, we reviewed the record-keeping at the Birch Elementary School. We noted the following weaknesses in internal control over cash receipts: i Policies and procedures specific to the Kindergarten program have not been developed. • Receipt forms are not pre-numbered. • Outstanding receivable lists are not updated in a timely manner. • Checks are not endorsed "For Deposit Only - Town of Reading" at the time of receipt. • Inadequate segregation of duties over the receipt, recording, and turnover of departmental receipts. Current Year Status: During fiscal year 2005 the School department developed policies and procedures regarding the kindergarten program, which effectively central ized the accounting activity within the school business office. However, these changes were not implemented until fiscal year 2006. yob 4 Further Action Needed: We continue to recommend the Town expand their cash receipts policies to include the kindergarten programs. Special attention should be paid to the deficiencies noted above, and appropriate measures should be taken to ensure the existence of an adequate segregation of duties and related controls. CURRENT YEAR RECOMENDATIONS 4. Develop Ambulance Billina Write-Off Policv The Town does not write-off ambulance receivables when they are determined to be uncollectible. As a result, the accounts receivable and offsetting deferred revenue recorded in the general ledger appear to be overstated. We recommend the Town formalize abatement procedures to periodi- cally write off uncollectible accounts. This will reduce the likelihood that receivables and liabilities will be overstated, as well as simplify the main- tenance of the accounting records. 5. Improve Controls - Assessing Office The Assessors' Office does not currently maintain a log to track abatements and remaining balances in overlay accounts. We recommend that the Assessor's office maintain overlay logs to improve reconciliation procedures with the Town's general ledger, as well as to pro- vide the Board of Selectmen with a periodic update of this critical information. 6. Improve Controls - Athletic Revolvina Accounts During our review of the School's athletic programs, we reviewed the cash receipt procedures over athletic user and event fees. We noted the following weaknesses in internal control over cash receipts: • Policies and procedures specific to the Athletic programs have not been developed. Receipt turnover forms submitted to the Collector's Office do not identify the'specific source of the revenue. ~G O 5 • Detailed activity records that show the student and amount paid do not exist. • A receipt log is not maintained for athletic user fees, which would provide a trail between turnovers and registrations. • User fee registrations are filed in alphabetical order by name, rather than by date or activity. • The individual responsible for counting gate receipts is the same individual preparing the turnover to the Collector's Office. • Checks are not endorsed "For Deposit Only - Town of Reading" at the time of receipt. We recommend the School Business Office expand the Town's cash receipts policies to specifically address the School's athletic programs. Special attention should be paid to the deficiencies noted above, and appropriate measures should be taken to ensure the existence of an adequate segregation of duties and related controls. 7. Periodically Discuss Fraud Prevention with Emolovees Recent situations of fraud occurring in large public corporations has resulted in a trickle down effect of increased focus on fraud prevention in many organizations. Part of this process involves periodic discussions by chief executives to all management and staff regarding the importance of ethical behavior and appropriate business practices. This helps create an environ-. ment where employees recognize that fraud at any level of the organization will not be tolerated. We recommend the Town periodically discuss fraud prevention with all employees, and the steps that should be taken when fraud is detected or suspected. This will help maintain an ethical business environment, and assure that employees are aware of their responsibilities to report abuses to the appropriate parties. 8. Improve Co ntrols - School Lunch Program During our review of the School's food service programs, we reviewed the cash receipt procedures at the High School, Middle School, Barrows Elementary School, and the Joshua Eaton Elementary School. We noted the following weaknesses in internal controls over cash receipts: G~ 6 • Policies and procedures specific to the food service programs have not been developed. • Cash registers are not used at the elementary schools. • Cash register tapes used at the High School and Middle School are not included in the daily turnovers to the food services office. . • Turnovers to the food services office do not differentiate cash from checks. We recommend the School develop and implement specific policies and procedures regarding cash receipts in the School's food service programs, which would compliment the Town's cash receipts policy. Special attention should be paid to the deficiencies noted above, and appropriate measures should be taken to ensure the existence of an adequate segregation of duties and related controls. 7 q c9 LEGAL NOTICE TOWN OF READING To the Inhabitants of the Town offleading: . You are hereby notified that an ..application for an All Alcoho.iic license. has been applied for by The. Boland Group, Nl, L.4.C. d/b/a Fuddruckers. The application, is for the premises at 50 Walkers Brook Drive, . Reading, .Massachusetts. Under the pro- visions of Chapter 138, Section 15 of the Massachusetts General Laws, a public hearing will be held concerning such, applicat.lo.n by the Board of Selectmen on Tuesday, December 20, 2005 at 8:15 p.m. in the Selectmen's Meeting. Room, 16 Lowell Street, -Reading, Massachusetts. All interested parties are invited to attend or submit their comments in writing,, or by email- to Town Manager at town. rrmanaaer@ci.readina.ma.us. By order of :.Peter: I;.Hechen.f ,le kne,r :TowrWanager 11/291 a~ 1 11/412005 TOWN OF READING ABUTTERS LIST IMAP57_.LOT218 OWNER ' OWNER2 MAILING`ADDRES, CITY 21P., STONEHAM PLANNING BOARD TOWN HALL STONEHAM MA 02180 WAKEFIELD PLANNING BOARD 1 LAFAYETTE STREET WAKEFIELD MA 01880 LYNNFIELD PLANNING BOARD 55 SUMMER STREET LYNNFIELD MA 01940 MASS DEPT OF HOUSING & COM. DEV. ONE CONGRESS ST 10TH FLOOR BOSTON MA 02114 WILMINGTON PLANNING BOARD 121 GLEN ROAD WILMINGTON MA 01887 NORTH READING PLANNING BOARD 235 NORTH STREET NORTH READING MA 01864 WOBURN PLANNING BOARD 10 COMMON STREET WOBURN MA 01801 METRO AREA PLANNING COUNCIL MAPC 60 TEMPLE STREET BOSTON MA 02111 PROP-113 OWNER1 OWNER2 OWN ADDR OWN-CITY OWN-STATE OWN-ZIP 246057000000021B JORDAN'S FURNITURE INC 100 STOCKWELL DRIVE AVON MA 02322 246068A00000130D ANZUONI THOMAS R 30D CARNATION CIRCLE READING MA 01867 246068A00000130C HARFF RONALD M DARLENE J HARFF 30C CARNATION CIRCLE READING MA 01867 246068A00000130B ABRU7710 GRACE ROBERT J ABRU7710 30B CARNATION CIR READING MA 01867 246068A00000130A PAOLILLO ANDREW ANNA MIRABELLI 30A CARNATION CIRCLE READING MA 01867 246068A00000128D SAWIN FREDERICK G CYNTHIA L SAWIN 28D CARNATION CIR READING MA 01867 246068A00000128C CALARESO JOSEPH JR ETAL TRS 28C CARNATION CIR READING MA 01867 246068A00000128B CHAN CEDRIC H ELIZABETH E LAM 286 CARNATION CIR READING MA 00186 246068A00000128A ASH KRISTIN M 28A CARNATION CIR READING MA 01867 246068A00000126D NOLA ROSE MARIE A TRUSTEE NOLA NOMINEE TRUST 26D CARNATION CIR READING MA 01867 24606BA00000126C PORTMAN STANLEY J DIANE M PORTMAN 26C CARNATION CIRCLE READING MA 01867 246068A00000126B CONNEARNEY JOSEPH T CAROL ARENA CONNEARNEY 26B CARNATION CIRCLE READING MA 01760 246068A00000126A LYNCH CARLA E TRUSTEE VIV REALTY TRUST 26A CARNATION CIR READING MA 01867 246068A00000124D VICHNUPAD NAOMI 24D CARNATION CIR READING MA 01867 246068A00000124C BARRY MADELINE M 24C CARNATION CIR READING MA 01867 246068A00000124B THOMAS JOHN A ETAL (LE) 24B CARNATION CIR READING MA 01867 246068A00000124A PERRY JUDITH A RICHARD T PERRY 24A CARNATION CIR READING MA 01867 246068A00000122D MIGLIORE LISA 22D CARNATION CIR READING MA 01867 246068A00000122C HUMPHREY JEAN 22C CARNATION CIR READING MA 01867 246068A00000122B RASO STEVEN V 9 HORSESHOE DR LYNNFIELD MA 19402370 246068A00000122A DOWNING JOHN J FAITH M DOWNING 22A CARNATION CIR READING MA 01867 246068A00000120D CESARIO JAMES D JACQUELINE B CESARIO 20D CARNATION CIR READING MA 01867 246068A00000120C PARK KIMBERLY 20C CARNATION CIR READING MA 01867 246068A00000120B CAPSTICK RICHARD C ETAL TRS CARNATION CIRCLE REALTY TRUS720B CARNATION CIR READING MA 01867 246068A00000120A JACKSON GREGORY L 20A CARNATION CIR READING MA 01867 246068A00000118D GERRISH JOIE M 18D CARNATION CIR READING MA 01867 246068A00000118C KIMBALL ROBERT L IRENE A KIMBALL 18C CARNATION CIR READING MA 01867 246068AO00001188 BLACK PATRICIA E 18B CARNATION CIR READING MA 01867 246068A00000118A SHINNEY WILLIAM THERESA V SHINNEY 18A CARNATION CIR READING MA 01867 246068A00000116D FLYNN JAY J 16D CARNATION CIR READING MA 01867 246068A00000116C MANTINI DANIEL S 16C CARNATION CIR READING MA 01867 246068A00000116B HENRY SUSAN M JAMES F HENRY 16B CARNATION CIRCLE READING MA 01867 246068A00000116A CIAMPA CAROL 16A CARNATION CIR READING MA 01867 246068A00000114D FUCCO CAROL A 14D CARNATION CIR READING MA 01867 246068A00000114C TOPPI WILLIAM LORRAINE A TOPPI 14C CARNATION CIR READING MA 01867 246068A00000114B PAPPAS ELAINE NICK PAPPAS 14B CARNATION CIR READING MA 01867 246068A00000114A CESARIO RAYMOND I ETAL TRS CESARIO REALTY TRUST 14A CARNATION CIR READING MA 01867 246068A00000113D HAMBURGER MARCIA A 13D CARNATION CIRCLE READING MA 01867 246068A00000113C KLUDJIAN DANA J SUSAN A KLUDJIAN 13C CARNATION CIRCLE READING MA 01867 246068A00000113B SKELLEY ARTHUR P NANCY SKELLEY 13B CARNATION CIRCLE READING MA 01867 246068A00000113A NAZZARO RICHARD A FILOMENA A NAZZARO 13A CARNATION CIR READING MA 01867 246068A00000112D INDIGARO KATHLEEN FRANCIS J TERRANOVA 12D CARNATION CIR READING MA 01867 N 11/4/2005 TOWN OF READING ABUTTERS LIST 246068A00000112C HUMPHRIES PAUL 12C CARNATION CIR READING MA 01867 246068A00000112B CONWAY CLARE B 12B CARNATION CIR READING MA 01867 246068A00000112A REGAN BERNARD J KAREN L BARRETT 12A CARNATION CIR READING MA 01867 246068A00000111 D PINELLI JOAN M 11 D CARNATION CIR READING MA 01867 246068A00000111C GALLI MICHAEL E 11C CARNATION CIR READING MA 01867 246068A000001116 MULLEN FREDERICK L 11 B CARNATION CIRCLE READING MA 01867 24606BA00000111A KELLEY PAUL E ELLEN M KELLEY 11A CARNATION CIRCLE READING MA 01867 246068A00000110D BUCKLER BRUCE F MARY L BUCKLER 10D CARNATION CIRCLE READING MA 01867 246068A00000110C BRADLEY WILLIAM A SHIRLEY L BRADLEY 10C CARNATION CIR READING MA 01867 246068A00000110B BHIMSIMHA C M USHA BHIMSIMHA 10B CARNATION CIRCLE READING MA 01867 246068A00000110A ALOISE MARIA E (L.E.) LAURA A WILSON ETAL 10A CARNATION CIRCLE READING MA 01867 246068A00000109D ZECHER ISABEL 9D CARNATION CIR READING MA 01867 246068A00000109C RASO STEVEN V 9 HORSESHOE DR LYNNFIELD MA 19402370 246068A00000109B ZHENG MENG CHUN SHI ZHU 9B CARNATION CIR READING MA 01867 246068A00000109A VENTURA RICHARD P SHARIANN VENTURA 9A CARNATION CIR READING MA 01867 246068A00000108D WHITE MURRAY A MAUREEN A WHITE 8D CARNATION CIA READING MA 01867 246068A00000108C GUAY NANCY H 8C CARNATION CIR READING MA 01867 246068A00000108B COOPER EILEEN M 8B CARNATION CIR READING MA 01867 246068A00000108A BURNS GEORGE F SANDRA M BURNS 8A CARNATION CIR READING MA 01867 246068A00000107D REITER BARBARA T 7D CARNATION CIR READING MA 01867 246068A00000107C JODICE LINDA 7C CARNATION CIR READING MA 01867 246068A00000107B LIM JI-LIEN 7B CARNATION CIR READING MA 01867 246068A00000107A HALE SANDRA A 7A CARNATION CIR READING MA 01867 246068A00000106D MILLER SCOTT D NANCY K MILLER 6D CARNATION CIR READING MA 01867 246068A00000106C INDICIANI DANIEL A 6C CARNATION CIR READING MA 01867 246068A00000106B AHMED LATHEEF S JOYCE M JANKUN 6B CARNATION CIR READING MA 01867 246068A00000106A NADEAU ROBERT H ETTA P NADEAU 6A CARNATION CIRCLE READING MA 01867 246068A00000105D GERSHINSKY ROBERT Z ETELVINA Q GERSHINSKY 5D CARNATION CIR READING MA 01867 246068A00000105C BROWN MARCIA 5C CARNATION CIR. READING MA 01867 246068A00000105B ENCARNACAO ANTHONY J 5B CARNATION CIR READING MA 01867 246068A00000105A KELLIHER KEVIN A FRANCES E KELLIHER 5A CARNATION CIR READING MA 01867 246068A00000104D GALLI MICHELLE M 4D CARNATION CIR READING MA 01867 246068A00000104C MCGUFFEY LINDA 4C CARNATION CIR READING MA 01867 246068A00000104B MCKENNA DOROTHY M 4B CARNATION CIR READING MA 01867 246068A00000104A MCCARTHY CLAUDIA M TRUSTEE CLAUDIA REALTY TRUST 4A CARNATION CIR READING MA 01867 246068A00000103D PARISH BENJAMIN D III BARBARA B PARISH TRS 3D CARNATION CIR READING MA 01867 246068A00000103C VAN HORN JACQUELYN 3C CARNATION CIR READING MA 01867 246068A00000103B KREKORIAN KAY K ETAL TRS KREKORIAN REALTY TRUST 3B CARNATION CIR READING MA 01867 246068A00000103A SMITH SHEILA SA CARNATION CIR SALEM MA 01970 246068A00000102F LUCCI ALFONSO DIANNE LUCCI 2F CARNATION CIR READING MA 01867 246068A00000102E HALLISEY GEORGE C GERALDINE HALLISEY 2E CARNATION CIR READING MA 01867 246068A00000102D VISCONTI GRACE L WILLIAM VISCONTI 2D CARNATION CIR READING MA 01867 246068A00000102C THISTLE CAROL L 2C CARNATION CIR READING MA 01867 246068A00000102B SHAH NIKHIL VARSHA SHAH 2B CARNATION CIR READING MA 01867 246068A00000102A WEINER LAURIE S 2A CARNATION CIR READING MA 01867 246068A00000101D MILLER ROBERT M DEBORAH KRANTWEISS 1D CARNATION CIR READING MA 01867 246068A00000101C HUANG WYNNE SCOTT A JUSSEAUME 1C CARNATION CIR READING MA 01867 246068A00000101B PANT DEEPTI JAY MATRONA 3 KIMBALL CT #512 WOBURN MA 01801 2460680000000060 READING OPEN LAND TRUST INC C/O JAMES R BOUCHER, CLERK 387 HAVERHILL ST READING MA 01867 2460680000000050 READING OPEN LAND TRUST C/O J R BOUCHER, CLERK 387 HAVERHILL ST READING MA 01867 246=20000001110 BUCCHIO ALEXANDER MARY ANN BUCCHIO PO BOX 55 STONEHAM MA 02180 000000114& TOWN OF READING 16 LOWELL ST READING MA 01867 W 11/4/2005 TOWN OF READING ABUTTERS LIST 246068A00000101A DUGAN RAYMOND JOSEPH 1A CARNATION CIR 2460570000000280 MCMANUS ROSE M OF WAKEFIELD ASSOC 98 WALKERS BROOK DRIVE 246057000000023& WALKERS BROOK CROSSING LLC 1266 FURNACE BROOK PKWY 2460570000000270 BLACKSMITH ENTERPRISES 11 LIMITED PARTNERSHIP 88 WALKERS BROOK DR 2460460000000060 ARISTONICS CORPORATION 95 WALKERS BROOK DRIVE 2460460000000050 TOWN OF READING CONSERVATION COMMISSION 16 LOWELL ST 2460670000000720 ZANNI ANGELO 22 LAKEVIEW AVE 2460460000000070 MOTIVA ENTERPRISES LLC C/O EQUIVA SERVICES LLC PO BOX 4369 2460670000000700 ZANNI MARY E 1/2 INT ZANNI DOMENICK JR ETAL TRS 22 LAKEVIEW AVENUE 2460570000000190 ZANNI DOROTHY M TR LAKEVIEW REALTY TRUST 22 LAKEVIEW AVE 2460670000000690 ZANNI MARY E 1/2 INT ZANNI DOMENICK JR ETAL TRS 22 LAKEVIEW AVE 2460670000000680 ZANNI MARY E 1/2 INT ZANNI DOMENICKJR ETALTRS 22 LAKEVIEW AVENUE 246057000000022& WALKERS BROOK CROSSING LLC 1266 FURNACE BROOK PKWY 246057000000012& ZANNI DOROTHY M TR LAKEVIEW REALTY TRUST 22 LAKEVIEW AVE 246057000000012& ZANNI DOROTHY M TR LAKEVIEW REALTY TRUST 22 LAKEVIEW AVE 2460460000000040 TOWN OF READING 16 LOWELL ST 2460670000000670 SECHER ELAINE A 114 EATON ST 2460570000000110 ZANNI DOROTHY M TRUSTEE ZANNI DOMENICKJR ETAL 1/4 22 LAKEVIEW AVE 2460670000000660 ROCHELEAU LAWRENCE W PAULA F ROCHELEAU 108 EATON ST 246067000000047& ZANNI MARY E (L.E.) ETAL TRS MARY E ZANNI 1990 REALTY TRUST 22 LAKEVIEW AVENUE 2460460000000030 BOSTON GAS COMPANY 201 RIVERMOOR ST 2460670000000650 KULIOPULOS CHRISTOS JULIE KULIOPULOS 102 EATON STREET 2460670000000460 ZANNI INC DOMENICK 22 LAKEVIEW AVE 2460670000000730 ECKERT JOHN 0 PO BOX 420102 246067000000050& PRESSMAN RONAL A TR OF THE EATON TRUST 115 EATON ST 2460670000000450 ZANNI EDWARD J TRUSTEE ZANNI NEW READING NOMINEE R 122 LAKEVIEW AVE 246067000000052& PRESSMAN RONALD A TRUSTEE 115 EATON ST 2460570000000020 IODICE MICHAEL F JR TR M J II REALTY TRUST 29 CRAFTS ST STE 250 2460460000000080 WALKERS BROOK L.L.C. 3 CENTENNIAL DR 246057000000021A HOME DEPOT USA, INC C/O PROPERTY TAX DEPARTMENT P. O. BOX 105842 2460460000000090 WALKERS BROOK L.L.C. 3 CENTENNIAL DR ® CERTIFIED THE READINO, ORS: BOARD OF ASSESSORS: READING MA 01867 READING MA 01867 QUINCY MA 00000 READING MA 01867 READING MA 01867 READING MA 01867 READING MA 01867 HOUSTON TX 77201 READING MA 01867 READING MA 01867 READING MA 01867 READING MA 01867 QUINCY MA 00000 READING MA 01867 READING MA 01867 READING MA 01867 READING MA 01867 READING MA 01867 READING MA 01867 READING MA 01867 BOSTON MA 02132 READING MA 01867 READING MA 01867 SUMMERLAND KE FL 33042 READING MA 01867 READING MA 01867 READING MA 01867 NEWTONVILLE MA 02160 PEABODY MA 01960 ATLANTA GA 30348-5842 PEABODY MA 01960 VN 'f f 3'~ri tr 1 i 1 , `Nip! •i T License Number THE COMMONWEALTH OF MASSACHUSETTS ALCOHOLIC BEVERAGES CONTROL COMMISSION FORM 43 Reading Cityfrown Date Tvoe of Transaction (Please check all relevant transactions) (x) New License ( ) New Officer/Director ( ) Pledge of License ( ) Transfer of License ( ) Change of Location ( ) Pledge of Stock ( ) Change of Manager ( ) Alter Premises ( ) Other The Boland Group, III, L.L.C. Name of licensee Fuddruckers e: r ll! vi LAVwPl lee James L. Boland er 50 Walkers Brook Drive, Reading, MA 01867 1 Address: Number Sireet Zip Code Annual All Alcohol Annual Or Seasonal Category: All Alcohol, Wine & Malt Restaurant. Types Restaurant, club, Package store, Inn, General on Premise, &c. Description of Licensed Premises: The urem'iaes' r ant•a inia •appxo$ #mate)E6,504 104- asd 18- 01t4ese at around level,* There IA. an axtarini- Annr• di =ect1F to. tko *013tk IA,A- sad an interior door to the'remaintder of• the floor of• the'hu- 11A,ing into common . area . Application was filed: Nov. `2 A:. 7-nn I '- 2:24' Date & time Person to contact regarding this transaction: Name: _ Address: Phone #: 0. 781 - 944 -0505 The Local Licensing Authorities By: Advertised: n - mronicle ate & Publication , Latham & Lamond, P :MA 01867 Alcoholic Beverages Control Commission Ellen Moriarty Erecutrve Director Remarks: No . .Page9 44 13 The Commonwealth of Massachusetts ALCOHOLIC BEVERAGES CONTROL COMI USSION FORM A LICENSEE PERSONAL INFORMATION SHEET THIS FORM MUST BE COMPLETED FOR EACH: X A. NEW LICENSE APPLICANT B. APPOINTMENT OR CHANGE OF MANAGER IN A CORPORATION C. TRANSFER OF LICENSE (RETAIL-ONLY -SEC. 12 & SEC. 15) (Please check which transaction is the subject of an application accompanying this Form A.) ALL QUESTIONS MUST BE ANSWERED AND TELEPHONE NUMBERS PROVIDED'OR APPLICATION WILL NOT BE ACCEPTED. 1. LICENSEENAME The Boland Group, III, L.L.C. d.b.a. Fuddruckers (NAME AS IT WILL APPEAR ON THE LICENSE) 2. NAME OF (PROPOSED) MANAGER James L. Boland 3. SOCIAL SECURITY NUMBER 4. HOME (STREET) ADDRESS 35 Magnolia Avenue, Magnolia, MA 01930 5. AREA CODE AND TELEPHONE NUMBER (S): (Give both, your home telephone and a number at which you can be reached during the day). DAYTIME# 1- 978 - 828 -1161 HOME# 1- 978 - 525 =2362 6. PLACE OF BIRTH: _ 7. DATE OF BIRTH: 8. REGISTERED VOTER: X YES NO 8A WHERE?: Gloucester, MA 9. ARE YOU A U. S. CITIZEN: X YES NO 10. COURT AND DATE OF NATURAUZATION (IF APPUCABLE): (Submit proof of citizenship and/or naturalization such as Voters Certificate, Birth Certl kxft or Naturalization Papers) q4(ql w 11. FATHER'S NAME: James Lawrence Boland 12. MOTHER'S MAIDEN NAME: Haddy Boland 13. IDENTIFY YOUR CRIMINAL RECORD, (Massachusetts, Military, any other State or Federal): ANY OTHER ARREST OR APPEARANCE IN CRIMINAL COURT CHARGED WITH A CRIMINAL OFFENSE REGARDLESS OF FINAL DISPOSITION: YES X NO (MUST CHECK EITHER YES OR NO) IF YES, PLEASE DESCRIBE OFFENSE (S) SPECIFIC CHARGE AND DISPOSITION (FINE, . PENALTY, ETC.) 14. PRIOR EXPERIENCE IN THE LIQUOR INDUSTRY: R YES NO IF YES, PLEASE DESCRIBE Manager is currently the owner of two other entities that hold liquor licenses, which are in good standing, in North Andover and Saugus. 15. FINANCIAL INTEREST, DIRECTOR INDIRECT, IN THIS OR ANY OTHER LIQUOR LICENSE, PERMIT OR CERTIFICATE: g YES NO IF YES, PLEASE DESCRIBE: Part owner of two other entities that hold liquor licenses; namely The Boland Group, II, L.L.C. and The Boland Group,::I, L•.L'C 16. EMPLOYMENT FOR THE LAST TEN YEARS (Dates, Position, Employer, Address and if known, Telephone Numbers): Manager of Fuddruckers Restaurants in North Andover and Saugus, Massachusetts 17. HOURS PER WEEK TO BE SPENT ON THE LICENSED PREMISES: 30 hours 18. 1 HEREBY SWEAR THAT UNDER T PAINS AND PENALTIES OF PERJURY THAT THE INFORMATION I HAVE GIVEN IN APPLICAM IS TRUE TO THE BEST OF MY KNOWLEDGE AND BELIEF. BY: November 1/, 2005 PRO SED MANAGER SIGNATURE DATE Fi M.E8NAAUPJMKIVNAUREEMFORNMW<M AAkWPD 9/99 ud1s The Commonwealth of Massachusetts Alcoholic Beverages Control Commission 239 Causeway Street Boston, MA 02114 Application for Alcoholic Beverage License for Retail Sale City/Town. Reading ( %) New License ( ) New Officer/Director ( ) - Transfer of License ( ) Other ( ) Transfer of Stock (specify) Section 1 Name to appear on the license: The Boland Group, III, L.L.C. Business Name (d/b/s, if different): Fuddruckers ManagerofRecord: James L. Boland FED of Licensee: Address of Premises: 50 Walkers Brook Drive, Reading, MA Zip Code: 01867 Phone number of premises: Sedion 2 Type of license: (check one only) ( ) Club ( ) Package Store ( ) Veterans Club ( ) General on Premise (%) Restaurnrt ( ) Other ( ) Irmholder ( ) Tavern Section 3 License Category ( g) All Alcoholic ( ) Wme and Malt ( ) Malt Only ( ) Wine Only ( ) Wine and Malt with Cordials Permit Section 4 License Class (%) Annual ( ) Seasonal Section 5 Person (attorney if applicable) who can be contacted concerning this application Name: 0. Bradley Latham, Latham, Latham & Lamond, P. C. Address: 643 Main Street, Reading, MA 01867 phone Number: 781 - 944 -0505 4dIb Section 6 Give a full description of the promises to be licensed, including location of all entrances and exits: The premises contains approximately 6,500 square feet and is-situated at ground level. There is an exterior door directly to the outside and an interior door to the remainder of the floor of the building, into common area. 6a. Seating Capacity: 150 Oom4xmcy Number: Section 7 Applicant is an: ( ) Association ( ) Corporation ( ) Individual ( ) partnership ( ) Non -profit corporation (X) LLC Section S If applicant is an individual or partnership — List for individual or each partner: Home 8a. Is individual or all partners United States citizens? ( ) If no, specify citizenship: 8b. Is individual or all partners involved at least twenty -one years old ?( ) Section 9 If the applicant is a corporation, complete the following: Yes ( ) , No Yes ( ) No State of Incorporation: Date of Incorporation: Fiscal Year Ends: 9a How many shares of stock are authorized: Date qualified to do business in MA- How many shares are issued: Provide i a the box the names if all officers, directors, stockhokkn and manager. Use * to indicate director Title Full Name Home Address DOB SSN Shares of stock owned or controlled 9b. Attach a copy of the vote by the Board of Directors appointing a manager or principal representatives. y4j1 9c. If the applicant is a corporation, answer the following questions: 1. Are the majority of directors United States citizens? ( ) Yes ( ) No 2. Are the majority of directors citizens of Massachusetts? ( ) Yes ( ) No' 3. Is the manager or principal rive a U.S. citizen? ( ) Yes ( ) No Section 10 If the applicant is an association, provide in the box below the names of all association officers and members. Title Full Name Home Address DUB SSN Phone Number lob. Attach a listofall members ofthe LLC. "List is attached as Schedule 10b. Section 11 Will there be any construction, remodeling, redecorating or building on the premises for this license? (x ) Yes ( . ) No (If yes complete a,b, c and d) a. Give an exact description of the construction, remodeling, redecorating or building on the premises: There will be a,-new interior design of the existing premises. This is reflected on the plan submitted with this application. b. What are the estimated costs: Renovation construction cost of $200,000.00 c. What is the conshmWonschedule: Completion by December 1, 2005. d. State all sources of construction financing: Loan from Citizens Bank. Section 12 Do you own the premises? ( ) Yes (x) No. If yes, please respond to the question below. ( ) As as individual ( ) Jointly Name of Realty Trust Name of Corporation ( ) Other (If you do not own the premises to be licensed, provide the following information about the owner.) Name:—Jordan's Furniture, Inc. . Phone Number: Address: 100 Stockwell Drive, Avon, MA 02322 1- 508 -580 -2900 4d1� 128 If a lease or rental, provid„c the fallowing information: $ 150, 000.00 per year ((see lease cye'.IAQ Beginning date of lease December 1, 2005 Ending Date of lease November 30, 2015 (provide copy of the lease) UNCIAL Section 13 What assets were purchased and cost? Equipment: $500,000-00 Furniture: $ Inventory: $ License: $ 0 13a. Total Purchase Price:. $ 500,000.00 13b. Identify below all sources of financing: Mmunur Loan a e $- 1,200,000.00 (Citizens) Cash: $ Goodwill: $ - -- Premise: $ 0 Seller. $ Other (specify): $ Document all sources e.g. Loan papers, checking accounts, stock sales, etc. Citizens Asset Finance Documents accompany the Application. 13c. All other' and conditions: A copy of the Asset Purchase Agreement accompanies the (provide purchase and sale documents) application. 13d. Are you seeking approval for license to be pledged: ( ) Yes ( %) No If yes, to whom: Me. Will the inventory be pledged: ( ) Yes (g) No 13C If yes, specify to whom: If a corporation, are you seeking approval for any corporate stock to be pledged. ( ) Yen ( ) If yes, identify to whom and identify the number of shares: OWNERSHIP INTERESTS No Section 14 State the following information for all persons or entities who will have any direct or indirect beneficial or financial interest in this license: Full Name Home Address DOB SSN Phone Number James L. Boland 35 Magnolia.Avenue Magnolia, MA 01930 978 - 828 -1161 Janet S. Boland 35 Magnolia Avenue Magnolia, MA 01930 978- 828 -1161 4411 14a. Describe all types of beneficial or financial interest each person or entity identified in Question 14 will have in this license: Person or amtity Beneficial or financial interest James L. Boland 91% ownership interest in the Applicant Janet S. Boland 9% ownership interest in the Applicant Boland I — Fuddruckers 14b. Does any person or entity listed in Question 14 have any direct or indirect'beneficial or financial interest in any other license granted under Chapter 138? (%) Yes ( ) No Name of license Ucense Name and Address Description of Interest James L. Boland I — Fuddruckers Boland All Alcohol Saugus, MA 01906 Owner — James L. Boland II — Fuddruckers Boland All Alcohol No. Andover, MA 01845 Owner — 91% Janet S. Boland I — Saugus, MA Owner — 9% Boland All Alcohol Boland II — No. Andover, 4 Owner — 9% 14c. Has any person or entity named in Question 14 ever held a license or a beneficial interest in a license issued under Chapter 138 which is not presently held? ( ) Yes (R) No (If yes, provide the following for each person or entity.) Name Type of License License Name and Address Date ownership surrendered 14d. Describe how all licenses in Question 14c were terminated (eg. transfer of ownership, non - renewal, =under, eta) Date License Reason why the license was terminated 44 ID 14e. Has arty person or entity named in Question 14 ever had a license suspended, revoked or cancelled? ( ) Yes . ( %) No (If yes, provide the following information) Date License Reason why the license was suspended, revoked or cancelled HE Has any person or entity named in Question 14 ever been convicted of violating any state, federal or military law? ( ) Yes (%) No 15. a. Each individual applicant most sign. b. Applications by a partnership must be signed by a majority of the partners. C. Applications by a corporation mast be signed by an officer authorized by a vote of the corporations Board of Directors. d. Applications by on association mast be signed by a majority of the members if the governing body. All signers must have answered question 10. e. False information or failure to disclose are reasons to revoke a license or deny a license application. Signed and subscribed to under the penalty of perjury, this 1 W day of November .20 05 By: Signature of Mill Name 'ale The Boland Group, III, L.L.C. by: Manager ov //it,/ James L. Boland, as Manager yd?,( SCHEDULE 10b The following persons are all of the members of the Boland Group, III, L.L.C.: MEMBERS: INTEREST James L. Boland 35 Magnolia Avenue Magnolia, MA 01930 91% Date of Birth: Social Security No: Phone Number: 978 - 828 -1161 Janet S. Boland 9% 35 Magnolia Avenue Magnolia, MA 01930 Date of Birth: Social Security No: Phone Number: 978 - 828 -1161 4�z2 The Commonwealth of Massachusetts Business Certificate Date November 2005 In conformity with the provision of Chapter one hundred and ten Section five of the General Laws, as amended, the undersigned hereby declare(s) that a business under the title of Fuddruckers isconductedat 50 Walkers Brook Drive, Reading MA 01867 � ofgW restaurant trace zip &W, Tm by the following named person(s). opnoNAL: 9( 78 828 - 1161 Purpose of filing this Business Certificate: X New business Renewal of an expiring business certificate Change in a business or owner's address Partial withdrawal of an owner / Termination of a business fAosing or out of the city) Owner 1 Name (Print) The Boland Group, III, L. L. C. Signature'-' Residence (Street, City, Zip) Owner 2 Name (Print) Signature - Residence (Street, City, Zip) Owner 3 Name (Print) Signature Residence (Shut, City, Zip) Owner 4 Name (Print) Signature Residence (Street, City, Zip) A certificate issued in accordance with this Section shall be inforce and effectfor 4 years from the date of issue and shall be renewed each 4 years therea, ?er so long as such business shall be conducted and shall lapse and be void unless so renewed Middlesex S:S The Commonwealth of Massachusetts On this day of November -20 05 , before me, the undersigned notary. public or City Clerk's designee, personally appeared -James L. Boland, as Manager of The Boland Group, III, L.L.C. proved to me through satisfactory evidence of identification, which were a driver's license to be the personlv:whose e/vis/am signed on this document, and who swore or affirmed to me that the contents of the doc ant thfu d accurate to the best of his K04MIF knowledge and belief My Commission Exp' 0. BRADLEY LA Darr rgoee a oo r NOTARY PUSUC 0%A40 *ATHOFMA88ACNU5 M My Comm. E:xpM sepL 15, 2011 This Business Certificate expires on (Notarial or City Se MINS 441h Certificate of Identification MY OF GLOUCESTER, MASSACHUSETTS, USA November 7, 2005. To Whom It May Concern: This is to certify that James L. Boland of 35 Magnolia Avenue is a registered voter, and resident of Gloucester, Massachusetts, USA. 6Z" c)5. . Robert D. Whynott, City Clerk City Seal: qjz,q THE BOLAND GROUP, III, L.L.C. RESOLUTION This is to certify that the Members of the Boland Group, III L.L.C. hereby authorize James L. Boland, as the Manager of the Company to apply for all licenses, permits and approvals to establish and operate a restaurant at 50 Walkers Brook Drive, Reading, Massachusetts, granting specific authorization to apply for a license to sell all alcoholic beverages at the restaurant and to take any further action that he deems necessary or appropriate to obtain such licenses and permits. The company hereby appoints James L. Boland as the Manager of the Premises to be the licensed manager pursuant to Massachusetts General Laws Chapter 138 and instruct said Manager to fulfill the legal obligations of the Manager as to the proper and secure acquisition, and dispensing of alcoholic beverages. Undersigned hereby certifies that the foregoing is a valid Resolution of The Boland Group, III. L.L.C. and that said resolution is in full force and effect on this date of November _Lj, 2005. The Boland Group, III L.L.C. (�w Id Jame . Boland, Manager jo� OFRF9or~ Town of Reading 16 Lowell Street ors3 p4~° Reading, MA 01867-2685 9'tNCoR4 FAX: (781) 942.9071 Email: townmanager&l.reading.mams MEMORANDUM DATE: December 5, 2005 TO: Lieutenant Kevin Patterson Health Administrator Jane Fiore Building Inspector Glen Redmond Town Planner Chris Reilly FROM: Lillian Marino, Town Manager's Office RE: Application for a Liquor License for Fuddruckers Attached is an application for a Liquor License for The Boland Group 111, LLC d/b/a Fuddruckers located at 50 Walkers Brook Drive. This material will be going before the Board of Selectmen at their meeting on December 20, 2005. Please review and get back to us with your comments. Thank o u for your assistance. lna Attachments TOWN MANAGER (781) 942.6643 yj 4 'Y Reading Police Department James W. Cormier, Chief of Police 9 >r CJ r"rl MEMORANDUM Z5 Date: December 9, 2005 R. To: Town Manager's Office W Cc: Lillian Marino From: Chief James Cormier RE: Liquor License for Fuddruckers / The Boland Group 111, LLC Approved By: Chief Cormier Approval Initials: v The Police Department has reviewed the application and information of Fuddruck&s Restaurant, and would not object to the issuance of a liquor license. 1 yd; Page 1 of 1 ~r 4v o~1 Hechenbleikner, Peter From: Brad Latham [blatham@latham-lamond.com] Sent: Sunday, December 04, 2005 10:51 AM To: Hechenbleikner, Peter Subject: Fuddruckers Liquor License questions Peter: The answers to the questions that you asked last week are as follows: 1- Jim Boland compared the Lease floor plan to the Liquor License floor plan and the only difference he sees is the entry way in front of the bakery has a soffit above it extending into the Beantown lobby about 5 feet. This was done after the lease floor plan and is designed to create a more appealing entry into the space. 2. The # of seats in the Liquor License Floor Plan represents 150 seats. Each of the corner booths is designated for 10 seats. 3. The outside door facing the parking lot will have the same open hours as Jordans and as it was with Johnny's. Any questions on the above, please advise. Brad Latham 1 G " 12/5/2005 LATHAM9 LATHAM & LAMOND, P.C. 643 MAIN STREET READING, MASSACHUSETTS 01867-3096 W W W. LLLLAW. C O M KENNETH C. LATHAM (1939-1996) 0. BRADLEY LATHAM* JOHN T. LAMOND SHEILAH GRIFFIN-REICHARDT JOSHUA E. LATHAM CHRISTOPHER M. O. LATHAM *ADMITTED TO PRACTICE IN MASSACHUSETTS & NEW HAMPSHIRE Peter Hechenbleikner, Town Manager Reading Town Hall 16 Lowell Street Reading, MA 01867 RE: Fuddruckers Dear Peter: Enclosed please find multiple copies of the Liquor License Layout Plan. Sincerely, obl:pp: December 8, 2005 Latham, Latham & Lamond, P.C. O Bradley Latham ~u ? TELEPHONE: (781) 944-0505 FAX: (781) 944-7079 na I Ln 164 q~9 yaw 6pla C/ LATHAM LATHAM & LAMOND~ P.C. 643 MAIN STREET READING, MASSACHUSETTS 01867-3096 W W W. LLLLAW. C O M KENNETH C. LATHAM (1939-1996) TELEPHONE: (781) 944-0505 0. BRADLEY LATHAM* FAX: (781) 944-7079 JOHN T. LAMOND SHEILAH GRIFFIN-REICHARDT JOSHUA E. LATHAM CHRISTOPHER M. O. LATHAM *ADMITTED TO PRACTICE IN MASSACHUSETTS & NEW HAMPSHIRE November 22, 2005 Board of Selectmen Town Hall 16 Lowell Street Reading, MA 01867 Re: Application for Alcoholic Beverage License for Retail Sale of All Alcoholic Beverages at a Restaurant submitted by The Boland Group, III, L.L.C. dba Fuddruckers at SO Walkers Brook Drive, Reading, MA Dear Selectmen: We submit herewith the application for an "all alcoholic beverage-restaurant" license on behalf of The Boland Group, III, L.L.C., doing business as Fuddruckers at 50 Walkers Brook Drive for the year 2006. The materials submitted include the following: 1. Application on ABCC Form; 2. Form A Licensee Personal Information Sheet; 3. Form 43; 4. Business Certificate for The Boland Group, III, L.L.C to do business as "Fuddruckers"; 5. Certificate of Voter Registration for James L. Boland to show citizenship; 6. Company Vote Appointing James L. Boland as Manager; 7. Company Vote Authorizing the Application for Licensure; 8. Facilities Floor Plan reflecting a seating plan of 150 seats; 9. Lease of Premises; 10. Asset Purchase Agreement; 11. Financing Documents; 12. Certificate of Organization for Applicant; 13. Operating Agreement for Applicant; 14. Certificate of Good Standing for Applicant; 15. Abutters' lists (Reading and Wakefield); and w !V Iv qji 16. Check for the ABCC. We respectfully request that legal notice be published in a timely manner and that a public hearing on the application be scheduled for December 20, 2005. Thank you. Sincerely, L77radley Lamond, P.C. Latham qj 11' I-Y-1 I I I 1 - 7117 Q VIOFO GAMF AREA ° Y9fRf'imm m HIGH TOP TABLE SEATING AREA + TOIL ET TOILET N in zif VEST- VEST. in _ ED p 201-0, a•_z• s•-r I -s+ TOILET 1+ + I tI ~ t + { c + F f F I E K TT OF HIGH TOP TABLESm 0 )el CITCHFN ~ k _ SEALING 150 m r T - SFATING ARFA \ 4'3• 10'-il' 1 b'-B• I~ 5'-10• I b'-7' I 5'-e' Este =7 04T 0--4 L I POs 3 CE4 pt OFFICE e / IL Fi. FC. ROOM M d' M N O Q co M o co _ O co VJ aC V V ~ m a @f) r r O (t l d Ul V fL 8 - ® K u DATE: 11-4I-05 SCAL E: AS NOTED DRAWN BY: CAD JOB NO: DRAWING NO : 102 1 `e LEASE AGREEMENT This Lease Agreement, dated August 2 , 2005 (the "Lease") is made by and between Jordan's Furniture, Inc., a Massachusetts corporation with a principal mailing address at 100 Stockwell Drive, Avon, Massachusetts 02322 ("Jordan's" or "Landlord") and The Boland Group III, LLC, a Massachusetts limited liability company with a principal mailing address at P.O. Box 5599, Gloucester, MA 01930 d/b/a Fuddruckers ("Tenant"). WITNESSETH THAT: WHEREAS, Jordan's is the owner of record of a condominium unit (the "Unit") in a condominium established in Reading, Massachusetts and known as Walkers Brook Crossing Condominium, in which unit Jordan's operates a Jordan's Furniture store ( the "Jordan's Store"); and WHEREAS, the parties hereto contemplate and intend that Tenant will lease from Jordan's and occupy approximately 6,500 square feet of the Unit for use as a Fuddruckers restaurant. The Unit is in a building (the "Building") the other portion of which (the lower level) is occupied as a Home Depot store. NOW, THEREFORE, in consideration of the mutual promises contained herein and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, it is mutually agreed by and between the parties as follows: ARTICLE I Grant and Term Section 1.01 Premises and Ouiet Eniovment a) Tenant agrees to lease from Jordan's and Jordan's agrees to lease to Tenant the premises designated on Exhibit A attached hereto and made a part hereof (the "Prei wises"); excepting and reserving to Jordan's the roof and exterior walls of the Unit; and furt ier reserving to Jordan's the Tight to place in the Premises (but above the finished ceiling, below the finished floor, tight against interior walls, and/or in any other location within the Premises that does not materially or adversely interfere with Tenant's operations in the Premises) utility lines, pipes, ductwork, exterior tower lighting and the like, to serve premises other than the Premises, and to fireplace and maintain and repair such utility lines, pipes and the like in, over and upon the Premises as may have been installed by Jordan's. Notwithstanding the plan of the Premises agreed to by the parties and attached hereto and made a part hereof as Exhibit A, Tenant acknowledges that Jordan's may change the plans, elevations, details, etc., if any, of the Building unless such change is to the Premises or materially or adversely affects access thereto or visibility thereof, in which case Tenant's consent shall be required and shall not be unreasonably withheld. •1 GSDOM1499831.6 8/12/2005 MAO AM 4d2 Tenant will design and build at its cost, subject to Jordan's approval of. Tenant's plans and specifications (which approval shall not be unreasonably withheld), everything necessary or desired in order to operate a Fuddruckers restaurant in the Premises (the "Tenant Work"). The Tenant Work and any permitted alterations shall be made in accordance with all applicable laws, in a good and first-class, workmanlike manner and in accordance with this Lease. Prior to performing any of Tenant's Work, Tenant shall deliver to Landlord such bonds and other assurances as Landlord shall reasonably require including, without limitation, payment and performance bonds and lien bonds. Such work shall be performed only by contractors reasonably approved by Landlord and shall be performed in such manner so as to interfere as little as reasonably possible with the ongoing operations of Landlord and any other occupants of the Unit and the Building; however, Landlord acknowledges that such work may occur during the normal business hours of the Jordan's Store. Section 1.02 Term a) The term of this Lease and Tenant's obligation to pay rent shall commence on the "Commencement Date", which is the earlier to occur of (1) the date Tenant opens for business, or (2) the ninety-first day after the date Jordan's delivers the Premises to Tenant. The Premises shall be delivered by Jordan's to Tenant in their as is condition, but free and clear of the existing occupant thereof. Tenant has entered into an agreement with the existing occupant of the Premises,. to purchase certain personal property as set forth on Exhibit B annexed hereto (the "Personal Property") for a purchase price of $500,000. Tenant agrees that it shall acquire the Personal Property in accordance with said agreement and shall pay all consideration therefor as provided in said agreement and Tenant's failure to do so shall be deemed to be a default under this lease not susceptible of cure for which the Landlord shall have the right to terminate this lease and to exercise such other rights and remedies as are provided herein or at law or in equity. b) The initial term of this Lease shall be for a term of ten (10) years commencing on the Commencement Date and ending on the last day of the month of the tenth anniversary of the Commencement Date (the "Initial Term"). Provided Tenant is not in default beyond any cure period at the time of exercise or at the commencement of the option period, Tenant shall have two (2) options to extend the Lease, each for a five (5) year period. If Tenant elects to exercise any such option, it shall do so by giving Jordan's notice of its election at least 270 days prior to the expiration of the then current term. It shall be a condition to the exercise of the second option that Tenant shall have exercised the first option. If Tenant properly and timely exercises any such option then the term of this lease shall be extended without the necessity of any further action by either party upon all the terms and conditions herein contained. C) As used herein, "Term" shall mean the Initial Term and, if the option provided herein is exercised, the option term. As used herein, the term "Expiration Date" shall mean the last day of the Initial Term or, if the option provided herein is exercised, the last day of the option term. •2- 4d2g GSDOCS\1499831.6 8/12/2005 10:40 AM d) The parties hereto agree, upon demand of the other, to execute a supplemental instrument expressing the Commencement Date of the term hereof when the Commencement Date has been determined. ARTICLE II Rent. Books and Records. Gross Sales Section 2.01 Rent a) Tenant covenants and agrees to pay without notice, demand or offset to Jordan's, at Jordan's address as set forth above, or at such place as Jordan's shall from time to time designate in writing, rent for the Premises as provided below. b) The Initial Payment Date shall mean the day immediately succeeding the day upon which the Gross Sales (as hereinafter defined) shall have exceeded $2,250,000 during any twelve consecutive month period or any portion thereof. For example, if the Commencement Date were January 1, 2006 and if the Gross Sales for the period ending July 31, 2006 were equal to $2,250,000 then August 1, 2006 would be the Initial Payment Date. As another example, if the Commencement Date were January 1, 2006 and the Gross Sales for the period March 15, 2006 through March 14, 2007 were $2,250,000 then the Initial Payment Date would be March 15, 2007. C) Within thirty (30) days after the Initial Payment Date Tenant shall pay to Landlord $135,000. d) Each twelve consecutive month period beginning on the Initial Payment Date is hereinafter in this subsection referred to as a lease year. The last lease year for the purposes of this subsection shall end on the last day of the Initial Term. During each lease year during the Initial Term hereof Tenant shall pay to Landlord a percentage rent equal to the following amounts which percentage rent shall be paid within twenty days after the end of each calendar month during such lease year and shall be calculated as follows: if during such lease year the total amount of Gross Sales shall be $2,500,000 or less then the percentage rent shall be equal to 6% of all Gross Sales. If during such lease year the Gross Sales shall have exceeded $2,500,000 but shall be less than $3,000,000 then the percentage rent shall be equal to 7% of all Gross Sales during such lease year. If during such lease year the Gross Sales shall have exceeded $3,000,000 but shall be less than $4,000,000 then the percentage rent shall be equal to 8% of all Gross Sales. If during such lease year the Gross Sales shall have exceeded $4,000,000 then the percentage rent shall be equal to 10% of all Gross Sales. The figures $2,500,000, $3,000,000, and $4,000,000 are sometimes the "Breakpoint Figures". Tenant shall make payment to Landlord on account of Gross Sales on a monthly basis within twenty (20) days after the end of each month during the lease year, which payment shall be accompanied by the statement of gross sales for such month and for such lease year to date. Until Gross Sales for a lease year shall have exceeded $2,500,000 the monthly payment shall be equal to 6% of the Gross Sales during the months so reported. However, once Gross Sales for a -J- ,laLq GSDOCS\1499831.6 8/12/2005 10:40 AM lease year shall have exceeded $2,500,000 then payment by Tenant on account of Gross Sales shall be calculated to take into account the applicable Gross Sales percentage. For example, if in a lease year during the first four months the Gross Sales shall be equal to $600,000 per month then the payment each month shall be equal to $36,000. However, if in the seventh month the Gross Sales were equal to $600,000 so that the total Gross Sales for such* lease year to date shall be equal to $3,000,000 then the percentage rent for the year to date will be equal to $210,000 and the Tenant shall make payment to Landlord so that the total for such percentage rent to date shall have been paid. Within sixty (60) days after the end of each lease year there shall be an adjustment between Landlord and Tenant so that Landlord shall receive, and Tenant shall pay, the total percentage rent due for such lease year and if Tenant's payments on account of such percentage rent shall have been less than the total due then Tenant shall promptly pay the same and if more than the total due then Landlord shall promptly refund the same to Tenant. e) If the Initial Payment Date has not occurred by the day immediately prior to the third anniversary of the Commencement Date then until the Initial Payment Date has occurred, on such third anniversary and on the fourth anniversary of the Commencement Date the Tenant shall pay to Landlord $50,000 and on each anniversary date thereafter during the Initial Term, the Tenant shall pay to Landlord $100,000, the last such payment being due on the expiration date of the Initial Term. . f) For and with respect to each option period the Tenant shall pay to the Landlord as minimum rent an amount equal to $400,000 per annum, payable at the rate of $33,333.33 per calendar month and proportionately at such rate for any partial month, which monthly payment shall be paid in advance on the commencement date of the first option period and on the first day of each month thereafter during the option periods. During the option periods the lease year shall be each twelve calendar month period beginning on the commencement date of the first option period. g) In addition to the minimum rent specified above for and with respect to the option periods, and as part of the total rent to be paid by Tenant to Jordan's during the option periods, Tenant covenants and agrees to pay to Jordan's, as percentage rent for each lease year, a sum equal to 10% of the excess of Gross Sales above $4,000,000 (the "Base Gross Sales") of such Gross Sales per lease year. h) If any lease year shall be less than twelve full calendar months then for such partial lease year the Base Gross Sales figure during the option periods and the Breakpoint Figures during the Initial Term shall each be reduced on a per diem, pro rata basis. In the event Tenant is not open for business during the days and hours required hereunder, except as otherwise permitted or provided hereunder then, in addition to all other remedies available hereunder, the Base Gross Sales figures and Breakpoint Figures, as applicable, shall be proportionately reduced on a per diem, pro rata basis. i) Tenant agrees, without notice or demand from Jordan's, to deliver to Jordan's, within thirty (30) days after the end of each month during the term hereof, a complete statement signed by an officer or authorized employee of Tenant, showing Gross Sales for such month. -4- 4A 3 a GSDOCS\1499831.6 8/12/2005 10:40 AM Tenant agrees to utilize cash registers and maintain accounting controls and books of account adequate for auditing purposes, to assure the proper recording of all Gross Sales and the exclusions and deductions therefrom as defined herein. j) Tenant agrees, without notice or demand from Jordan's, within sixty (60) days after the end of each lease year, to cause.a statement of the Gross Sales of Tenant made at, in, on and/or from the Premises for such lease year to be certified by an officer of Tenant, and a copy of such statement certified by such officer shall be delivered by Tenant to Jordan's within such sixty-day period, and such statement shall be accompanied by a check of Tenant for the balance of the percentage rent, if any, payable with respect to such prior lease year. k) All statements deliverable by Tenant to Jordan's under this Lease shall be delivered to the place where rent is then payable, or to such other place or places as Jordan's may from time to time direct by written notice to Tenant. 1) During the option periods no percentage rent shall be payable for any lease year during an option period until Gross Sales during that lease year exceed the Base Gross Sales figure. Tenant agrees without notice or demand from Jordan's, within thirty (30) days after the end of the month in each lease year during an option period and after each ensuing month during that lease year, to pay to Jordan's on account of percentage rent a sum equal to the percentage of Gross Sales herein, multiplied by the amount by which Gross Sales during the portion of that lease year which had expired as of the end of such immediately preceding month exceed the applicable Base Gross Sales, less amounts theretofore paid hereunder for and with respect to that lease year on account of percentage rent. m) The rent as determined pursuant to this Section 2.01, paid by Tenant to Jordan's shall. include all occupancy costs including so-called common area maintenance fees, advertising, real estate taxes, landlord insurance, etc., excepting only utilities consumed at the Premises which shall be paid for by Tenant as herewith provided and.the costs and expenses necessary for Tenant to comply with its Lease obligations (e.g., repair, indemnity) and operate its restaurant at the Premises. Tenant shall pay for all of its requirements for electricity, including, without limitation, electricity necessary for heating and air conditioning the Premises, and all of its costs of gas, water, sewer, heating and air conditioning and any other utilities. Gas shall be separately metered (the cost of such meter to be paid for by Tenant) and the costs of electricity, water and sewer shall be based on submeters installed by Landlord (the cost of which shall be reimbursed by Tenant). Tenant shall pay for the costs of gas directly to the utility company supplying the same and for the costs of electricity, water and sewer to Landlord based on its consumption of electricity or water (as the case may be) at the Premises as measured by the submeter. With respect to heating and air conditioning, Landlord is supplying hot air and cooled air from its central system for distribution by Tenant throughout the Premises. The cost of the provision of the hot air and cooled air through the central system shall be determined by Landlord based on information supplied to Landlord by an engineer. Costs in respect of utilities to be paid by Tenant to Jordan's shall be paid by Tenant to Jordan's within twenty (20) days after billing therefor which shall be no more often then monthly. Tenant shall pay for the cost of all utilities from the date of delivery of possession of the Premises by Jordan's to Tenant through the Expiration Date or any later date that Tenant shall continue to occupy the Premises. .5. qJ3 GSDOM1499831.6 8/12/2005 10:40 AM n) Neither Jordan's nor Tenant shall in any event be construed or held to be a partner or associate of the other in the conduct of the other's business, nor shall Jordan's be liable for any debts incurred by the other in the conduct of the other's business; but it is understood and agreed that the relationship is and at all times shall remain that of landlord and tenant. Section 2.02 Interest Any sums owed by such party to the other and unpaid when due shall bear interest from such due date until payment is received on such past due amounts at an annual rate of the so- called "prime rate" of Bank of America or its successor, plus four (4%) percent; provided, however, that the first two times in any calendar year that a party shall determine to charge such interest it shall give notice thereof to the other party and such interest shall be waived if such other party shall make payment of the amount past due within ten (I 0)-days after such notice. However, if a party shall have a good faith dispute with regard to an amount owed and notifies the other of such dispute within ten (10) days after the due date thereof, which notice shall be accompanied by reasonable evidence supporting the disputing party's position, then such interest shall be tolled (not waived) for the thirty (30) day period after the due date, and both parties shall make good faith efforts to resolve the dispute. Section 2.03 Books and Records a) Jordan's shall have the right to inspect and audit Tenant's records of Gross Sales not more than once per year (unless there shall be cause), upon reasonable notice. Such inspection or audit shall be restricted to those records of Gross Sales only from the Premises. Tenant shall keep such records at Tenant's main accounting office, or at the Premises, for at least thirty-six (36) months after Jordan's receipt of the required annual statement for each lease year. As used herein, the term "records of Gross Sales" shall mean all of the books of account, documents, records, returns, papers, tax returns, original sales records (including, without limitation, cash register tapes, sales slips, bank statements and deposit slips, credit-card records, mail orders, telephone orders, computer records and such other sales records, if any, which would normally be examined by an independent accountant pursuant to generally accepted auditing standards in performing an audit of Tenant's Gross Sales from the Premises) and files of Tenant which Tenant would normally keep as its customary records relating to Gross Sales from the Premises for any lease year. If Jordan's shall have such an audit made for any lease year, and (i) the Gross Sales shown by Tenant's statement for such lease year shall be found to be_ understated by more than five percent (5%) and percentage rent shall be found to be due, or (ii) Tenant fails to maintain sufficient records of its Gross Sales to enable Jordan's to perform such audit in accordance with generally accepted auditing standards, then Tenant shall pay to Jordan's on demand the reasonable cost of such audit. Tenant shall promptly pay to Jordan's any deficiency in percentage rent plus interest at the rate set forth herein from the date such payment should have been made to the date of payment. Such examination and audit may be made by any accountant designated in writing by Jordan's from time to time. .6_ qj z GSDOCS\1499831.6 8/12/2005 10:40 AM Section 2.04 Gross Sales a) The term "Gross Sales" means: (i) the entire amount of the price charged, whether wholly or partially in cash or on credit, or otherwise for all goods and merchandise of any kind, sold, rented, leased, licensed, picked up at or delivered from or to, and all charges for services (including any sales therefrom) sold or performed in, at, upon or from any part of or through the use of the Premises by Tenant and any other entity or person or by means of any mechanical or other vending device; (ii) the receipts from all orders secured or received in or delivered to the Premises by telephone, mail, computer, facsimile machine or otherwise by personnel operating from, reporting to or under the supervision of any employee, agent or representative located at or operating out of the Premises, or which Tenant, in the normal and customary course of its operations, would credit or attribute to its business in the Premises, or by other means, whether or not filled elsewhere; (iii) all deposits received and not refunded to the purchaser in connection with any transaction; and (iv) all moneys or other things of value received by Tenant from its operations at, in, on or from the Premises which are not expressly excluded from Gross Sales by the other provisions of this definition. b) Gross Sales shall not include (i) the net amount of cash or credit refunds made upon Gross Sales where the merchandise sold or some part of it is refunded by the purchaser to and accepted by Tenant; (ii) the amount of any sales tax, meals tax, use tax or retail excise tax which is imposed by any governmental authority directly on sales and which is both added to the selling price (or is absorbed therein) and is paid to the taxing authority by Tenant; (iii) exchanges of merchandise between the Premises and other stores or warehouses of Tenant, to the extent the same are made solely for the convenient operation of Tenant's business and not for the purpose of depriving Jordan's of the benefit of Gross Sales; (iv) returns of merchandise to shippers, suppliers or manufacturers; (v) discount sales to charities, employees, contractors, vendors and agents of Tenant of merchandise not intended for resale up to one percent (1%) of Gross Sales per lease year; (vi) gift certificates until redeemed or booked as a sale; (vii) income from gift wrap, delivery, repairs, installations, or other services made primarily for customer convenience and not intended for profit; (viii) costs of credit; (ix) bulk sales out of the ordinary course of business; (x) bad debts net of recovery; (xi) sales of fixtures and equipment; (xii) insurance proceeds; (xiii) tips and other gratuities which are received by the waitstaff and not by any managers or officers of Tenant; (xiv) outside catering sales and (xv) the amount of any discounts or coupon redemptions. ARTICLE III Use and Conduct of Business Section 3.01 Use and Trade Name Tenant shall use the Premises for only the following purposes and under the following trade name: a) The Premises may be used only for a Fuddruckers restaurant, serving a variety of breakfast items, hamburger items and salads and coffees, teas, juices and other non-alcoholic 4J3,3 GSDOCS\1499831.6 8/12/2005 10:40 AM beverages and such other food items as are customarily sold in all other Fuddrucker's restaurants and, at Tenant's election and subject to the terms of this lease, beer and wine but no other alcoholic beverages. Attached hereto as Exhibit C is a menu for Tenant's current operations, which Landlord acknowledges complies with the provisions of this subsection. As incidental to the food operations at the Premises Tenant may sell at retail t-shirts and other merchandise which is branded with Tenant's name. In no event shall ice cream be served at the Premises except that ice cream may be included in frappes and milk shakes which may be sold for on or off-premises consumption. b) Tenant shall operate the Premises only under the trade name "Fuddrucker's". C) While the primary use of the Premises shall be for a restaurant for on- premises consumption of food and beverages, the sale of food for off-premises consumption as an incidental use shall be permitted and in all events the Tenant shall install a take out service in the Premises so that customers of Jordan's may take out food items from the Tenant's restaurant at the Premises for consumption within the Jordan's Store. In no event shall ice cream or ice cream confections be sold for off-Premises consumption. Section 3.02 Operation a) Except for force majeure or as otherwise expressly provided herein, Tenant shall open for business on the Commencement Date and shall operate the Premises in good faith during the Term with a reasonably complete stock of merchandise and adequate personnel for efficiently accommodating its customers so as to produce the maximum profitable and practical Gross Sales. The Premises shall contain at least 150 seats for customers. Landlord warrants that use of the Premises for 150 seats for customers.is permitted under applicable zoning by-laws. Except as otherwise expressly provided herein, the Premises shall be continuously open and operated during all hours and on all days that Jordan's is open and operating the Jordan's Store, which are currently 10 AM to 10 PM Monday through Friday, 10 PM to 11 PM on Saturdays, and 11 AM to 7 PM on Sundays. For and with respect to any day when the Tenant is not open for business at the Premises as required herein, Tenant shall pay to Landlord, as liquidated damages and not as a penalty, the amount of $1,000. b) No sales or promotions may be conducted within the Premises other than in the normal course of Tenant's continuing business operations therein. Without limiting the generality of the foregoing, no auction, fire, bankruptcy, "lost our lease" or going out of business sales (or the like, howsoever denominated) may be conducted within the Premises; Tenant shall display, sell and advertise only first-quality merchandise and not any seconds or damaged goods, and shall never conduct any so-called outlet, warehouse or like discount operations in or from the Premises. c) Except as expressly set forth in this subsection, Tenant shall not use any area outside of the Premises, including, without limitation, the accessway and common areas adjacent to the Premises for business or other purposes (including, without limitation, the sale or display of merchandise or the distribution of handbills or advertising of any type). So long as Landlord provides seating areas for customers of the Jordan's Store within the so-called Beantown area of GSDOMI499831.6 8/12/2005 10:40 AM 4j3q the Jordan's Store then Tenant's customers may use the same provided that Tenant shall pick up all trash and wipe down all tables within the Beantown Area, all as and when necessary. In addition thereto with the reasonable prior approval of the Landlord, Tenant may install tables and seats in the so-called Duck Tour area of the Jordan's Store in specific locations and in specific numbers which Landlord approves in Landlord's reasonable discretion (provided said chairs and tables shall not interfere with emergency egress) and such tables and chairs may be used by Tenant's customers provided that Tenant shall maintain such tables and chairs in good order and condition and shall pick up all trash and wipe down such tables in such area, all as and when necessary. d) Tenant shall not at any time use or occupy the Premises, or suffer or permit anyone to use or occupy the Premises, or perform any act in the Premises, or suffer or permit any act to be performed, or suffer or permit any item to be brought into or kept on the Premises, which in any manner in the reasonable sole discretion of Jordan's (1) violates the Certificate of Occupancy for the Premises; (2) cause or is liable to cause injury to the Premises or any equipment, facilities or systems therein; (3) constitutes a violation of the laws and requirements of any public authorities; (4) impairs the character, reputation or appearance of the Premises as a first-class operation; (5) impairs the proper and economic maintenance, operation and repair of the building of which the Premises is a part and/or its equipment, facilities or systems; (6) constitutes a public or private nuisance; (7) makes unobtainable from a reputable insurance companies authorized to do business in Massachusetts all-risk property insurance, or liability, elevator, boiler or other insurance at standard rates required to be furnished by Jordan's under the terms of any mortgages covering the Premises; or (8) violates the Condominium Documents or the REA. e) Tenant agrees to use all commercially reasonable efforts as may be necessary. to eliminate noises and vibrations in the Premises and emitted therefrom. Tenant further agrees that it will, promptly upon receipt of written notice from Jordan's, take whatever steps may be necessary in order to comply with problems with noise and/or vibration in the Premises, as reasonably requested by Jordan's from time to time. Tenant shall use all commercially reasonable efforts to minimize odors to be emitted from the Premises, and Tenant shall install all necessary ventilation systems so as to minimize odors including if required to eliminate odors a charcoal filtration system, and shall take all necessary steps as reasonably directed by Jordan's. Tenant shall keep all ventilation systems and grease traps properly maintained and clean. f) Neither Jordan's nor Tenant shall use, handle or store or dispose, of any oil, hazardous or toxic materials or hazardous or toxic wastes in or about the Building or common areas, except for de minimus amounts of same customarily used in their respective operations, if any, and in compliance with applicable law. g) Tenant, with respect to the Premises, and Jordan's, with respect to the Jordan's Store, further agree that in the use, occupation and maintenance thereof and in the conduct of their respective businesses therein, they shall comply with all requirements of all applicable laws, ordinances, orders and regulations of the federal, state, county and municipal authorities and of any and all other applicable departments and bureaus now in force, or which hereafter may be in force, and shall comply with any direction or certificate of occupancy issued pursuant GSDOCS\1499831.6 8/12/2005 10:40 AM Nd3s to any applicable law, and make any necessary repairs and alterations to the Premises~required to so comply. Tenant, at its own expense, shall comply promptly with and execute all rules, orders, regulations and recommendations of the Board of Fire Underwriters Rating Board and insurance companies with respect to the prevention of fires and the exposure of liability risks provided such compliance does not involve structural repair (unless such structural repairs are due to Tenant's particular use of the Premises as opposed to general retail use, Tenant Work, or any alterations by Tenant). Each party, at its own expense, shall furnish and maintain in good order adequate number and type of fire extinguishers on its respective premises at all times. h) Both Jordan's and Tenant acknowledge that their businesses are developed and shall be maintained as first-class business operations. If at any time during the Term, Jordan's shall cease to operate a Jordan's Store at the Building, during such period of time of such cessation no minimum rent and other charges shall be due hereunder for any day when the Tenant is not operating its restaurant at the Premises, and if such cessation of operation shall continue for more than one hundred eighty (180) consecutive days then either party may terminate this Lease by notice to such effect given to the other party within thirty (30) days after the end of such period and before such operation shall have been recommenced in which event this Lease shall terminate upon the date of such notice as if such date where the date originally set forth in this Lease for the expiration thereof. i) Tenant agrees to abide by the non-discriminatory, reasonable rules and regulations established by Jordan's from time to time, j) Tenant shall receive and deliver goods and merchandise only in the manner, at such times, and in such areas, as may be reasonably designated by Jordan's; and all trash, refuse, and the like kept within the Premises shall be kept in covered trash receptacles which do not emit any odors. Tenant shall maintain all so-called wet refuse, in proper containers for the same and shall dispose of the same at Tenant's sole cost and expense. All trash, refuse and the like. shall be removed by Tenant from the Premises on a daily basis to the compactor or other trash receptacle designated by Jordan's, and shall be separated and otherwise disposed of as required by applicable law. All trash and rubbish shall be disposed of at such times as are approved by Landlord and Tenant shall not transport rubbish or trash during the peak or busy times of the Jordan's Store. During the period of any construction by Tenant, any construction refuse shall be disposed of in a separate dumpster to be provided by Tenant at its expense and located in an area acceptable to Jordan's. (k) Tenant shall have the right to install vending machines in the Premises for use by Tenant's patrons at. the Premises but all sales thereof shall be included within Gross Sales and the location and number of such machines shall be subject to Landlord's reasonable approval, and Landlord may withhold approval to any machines that are visible from the front of the Premises. •10- Nd3(n GSDOCS11499831.6 8/12/2005 10:40 AM ARTICLE IV Section 4.01 Common Areas and Premises Maintenance a) Jordan's shall maintain the common areas in the Unit serving the Premises in a first-class condition and the utilities in the Unit serving the Premises in good working order and condition, and Tenant shall have the nonexclusive right to use such common areas for their intended purposes, and Tenant and its invitees shall have the right, without charge, to use the common areas of the Condominium which are appurtenant to the Unit on a non-exclusive basis subject to and in accordance with all the terms, covenants and conditions of the Condominium Documents and the REA. Jordan's reserves the right to enlarge, reduce, or otherwise change the size and nature of the common areas and the Unit (exclusive of the Premises) from time to time; provided, however, that except for emergencies, casualty, condemnation and force majeure, Jordan's shall not interfere materially or adversely with the visibility of or accessibility to Tenant's Premises. b) As part of Jordan's Work, Jordan's shall supply Tenant with cold and hot air (HVAC) in accordance with its building standards. Tenant shall be responsible for distributing HVAC within the Premises. In the event of an HVAC failure due exclusively to the failure of Jordan's to supply cold or hot air that requires Tenant to close its Premises for more than forty- eight (48) consecutive hours after notice of such failure and closing to Jordan's, then as Tenant's remedy therefor Tenant's obligations for minimum rent shall be abated until Tenant can reopen in the Premises. Tenant shall at all times fully and adequately heat and/or air-condition (as the circumstances require) the Premises. In no event shall Tenant in any manner "bleed" from the heating or air-conditioning provided for the balance of the Building. c) Jordan's shall keep, or cause the Condominium to keep, the foundation, roof, walls and other structural portions of the Premises. and its own premises in good order, repair and condition except as aforesaid and for damage caused by Tenant, its agents or servants, for which Tenant shall be responsible. d) Tenant shall keep all parts of its Premises not required to be maintained by Jordan's in good order and repair, clean and safe, including, without limitation, all interior, non- structural portions thereof. e) Except as otherwise provided herein, Tenant and Jordan's shall comply with all applicable laws, ordinances, rules, regulations and orders of governmental and public bodies and agencies with respect to the portions of the Premises each is responsible for under (c) and (d) above. f) After obtaining Jordan's consent, which consent shall not be unreasonably withheld, conditioned or delayed, Tenant at any time may alter, remodel or refurbish the non- structural portions of its Premises; provided, however, that no such consent shall be required in connection with cosmetic or decorative changes to the Premises that do not affect the structure, or mechanical or utility systems thereof, up to an aggregate of $25,000 per calendar year, provided prior reasonable notice of such changes is provided by Tenant to Jordan's. .11 _ 4437 GSDOCSU499831.6 8/12/2005 10:40 AM g) • On expiration or earlier termination of this Lease, Tenant shall surrender the Premises to Jordan's in good condition, reasonable wear and tear and damage by casualty excepted. Tenant shall remove its equipment, shelving, cases, and other installations not characterized as leasehold improvements, and, repair any damage caused by such removal. Any equipment or other property not removed by Tenant on or before such expiration of earlier termination shall become Jordan's property and may be removed and/or stored at Tenant expense or retained by Jordan's or sold by Jordan's with the proceeds retained by Jordan's. h) Tenant shall not suffer any lien to be filed against the Premises or the Building or the land relating thereto for any work, services or material furnish to Tenant nor permit any security interest or other lien to be created against any part of the Premises, the Building, or such land (excluding Tenant's property) and shall cause any such lien or security interest to be discharged within ten (10) days after notice of same. i) Tenant covenants and agrees that during the entire terns of this lease Tenant will conduct in the Premises a high grade operation serving first quality food for on-premises consumption. The Premises will be kept clean at all times. Tenant shall install grease traps in accordance with municipal requirements and shall maintain the same in accordance with said requirements. Tenant agrees to use all commercially reasonable efforts which may be necessary to minimize odor and noise in the Premises and emitted therefrom and periodically, at least monthly, shall clean all grease traps, ducts and fans. Further, Tenant agrees to maintain a contract with a licensed pest control contractor reasonably acceptable to Landlord which contract will provide for the periodic (at least monthly) application of necessary pest control materials in the Premises. Tenant agrees to provide Landlord with a copy of such contract and evidence of such monthly applications. j) In the event that Tenant elects to allow beer and/or wine to be consumed -at the Premises Tenant shall comply with the following provisions: Tenant shall obtain and maintain all necessary governmental permits and licenses therefor at Tenant's sole cost and expense and shall offer for sale and consumption beer and/or wine only in strict compliance therewith; (ii) without limiting the generality of any other provisions of this lease Tenant agrees to indemnify and hold harmless Landlord from and against any and all claims and any and all loss cost damages or expenses relating to the sale of beer and/or wine in and from the Premises including without limitation any such claim arising from the act, omission or negligence of Tenant or Tenant's contractors, licensees, agents, employees or invitees or from any accident, injury or damage whatsoever caused to any person and to the property of any person from and after the date that possession of the Premises is delivered to Tenant until the end of the Term of this lease whether such claim or accident, injury or damage occurs within the Premises within the Condominium or outside the Premises or outside the Condominium. This indemnity and hold harmless provisions shall include indemnity against all costs, expenses and liabilities (including, without limitation, reasonable legal fees, court costs and other reasonable disbursements) made in connection with any such claim or proceeding brought thereon, and the defense thereof, and shall survive the termination of this lease. In addition, during such period of time as Tenant shall serve beer and/or wine or shall allow beer and/or wine to be consumed at the Premises, Tenant agrees to maintain with a responsible and qualified insurance company approved by Landlord so- GSDOCS11499831.6 8/12/2005 10:40 AM -12- N bag called liquor liability insurance with a minimum limit of at least $5,000,000 or such higher limits as Landlord may from time to time reasonably require, which policy shall insure the Tenant and shall name the Landlord and all those claiming by, through or under the Landlord as additional insured. Certificates of such insurance shall at all times be deposited with Landlord showing the insurance in force and shall provide that the same shall not be cancelled without at least thirty (30) days prior written notice to Landlord and such certificates shall evidence the same. All sales of beer and wine shall be included within Gross Sales under this lease. Tenant shall adopt such reasonable security measures relating to the sale of and/or consumption of beer and/or wine on the Premises as shall be reasonably required for the promotion of the safety and security of the customers of Tenant and of Jordan's. ARTICLE V Insurance and Indemnification, Section 5.01 Indemnitv and Liabilitv Insurance a) Excluding matters arising out of the negligence or willful misconduct of Jordan's or Jordan's managing agent, Tenant agrees to indemnify and save harmless Jordan's, Jordan's managing agent and any holder of any mortgage on the Unit from and against all claims of whatever nature arising from any act, omission or negligence of Tenant, or Tenant's contractors, licensees, agents, servants; or employees, or arising from any accident, injury, or damage whatsoever caused to any person, or to the property of any person, or from any violation by Tenant, its contractors, licensees, agents, servants, or employees of applicable law including, without limitation, any law, regulation, or ordinance concerning trash, hazardous materials, or other pollutant, occurring from and after the date that possession of the Premises is delivered to Tenant and until the end of the Term hereof (or if later, the date of Tenant vacating the Premises) in or about Tenant's Premises, or arising from any accident, injury or damage occurring outside of the Premises but on or about the Condominium or its common areas, where such accident, damage or injury results or is claimed to have resulted from an act or omission on the part of Tenant or Tenant's contractors, licensees, agents, servants or employees. Jordan's agrees to indemnify and hold harmless Tenant from and against all claims of whatever nature to the extent resulting from any act, omission or negligence of Jordan's or Jordan's agents, servants, contractors or employees or arising from any accident, injury or damage whatsoever caused to any person, or to the property of any person, or from any violation of applicable law, including, without limitation, any law, regulation or ordinance concerning trash, hazardous waste, hazardous material, oil, or other pollutant, occurring during the Term hereof in the common areas of the Unit or the Condominium and not as a result of any act, omission or negligence of Tenant or other occupants of the Condominium or their respective contractors, licensees, agents, servants or employees. indemnity and hold harmless agreements above shall include indemnity against all costs, expenses and liabilities incurred in or in connection with any such claim or proceeding brought thereon, and the defense thereof b) In addition to any reasonable construction insurance required to be maintained by Tenant, initially as set forth on Exhibit D attached hereto and made a part hereof, Tenant agrees to maintain in full force during the term hereofa policy of commercial general liability insurance .,3. a3q GSDOCS\1499831.6 811212005 10:40 AM (or the then successor equivalent from time to time), without any so-called employee exclusion or the like; or otherwise in the broadest and most comprehensive form then generally available from time to time; under which Jordan's (and such other persons as are in privity of estate with Jordan's as may be set out in notice from time to time) is named additional insured on a primary basis and Tenant is named primary insured, and under which*the insurer agrees to indemnify and hold Jordan's and those in privity of estate with Jordan's harmless from and against all cost, expense and/or liability arising out of or based upon any and all claims, accidents, injuries, and damages mentioned above in Section 5.01(a). Each such policy shall be written by a reputable and financially sound, duly licensed and admitted insurance company with an A- financial rating and non-cancellable with respect to Jordan's and Jordan's said designees without thirty (30) days' prior written notice to Jordan's, and a duplicate original or certificate thereof shall be delivered to Jordan's. Such certificate of insurance shall be modified to.delete any wording that relieves (or reduces) the insurer of its obligations to notify Jordan's of any policy cancellation. The minimum limits of liability of such insurance shall be $1,000,000.00 each occurrence; $2,000,000.00 general aggregate limit; $2,000,000.00 products-completed operations aggregate limit; $1,000,000.00 personal and advertising liability; $50,000.00 fire legal liability; and $5,000.00 medical expense limit (each person); or such higher limits as Jordan's may from time to time reasonably request, provided such higher limits are then customarily carried by landlords of first-class property in the geographic area in which the Premises are situated. In addition, Tenant shall carry an excess liability policy in umbrella forth with a minimum limit of liability in the amount of $5,000,000.00 also naming Jordan's and its designees as additional insureds on a primary basis. At the request of Jordan's Tenant shall have the trustees of the Walkers Brook Crossing Condominium Trust and any other unit owner within the Condominium named as additional insured on its liability policies. c) Tenant agrees to use and occupy the Premises and to use such other portions of the Unit and Condominium and its common areas as it is herein given the right to use at its own risk; and that Jordan's shall have no responsibility or liability for any loss of or damage to Tenant's fixtures, furnishings, equipment, inventory or other personal property, except as otherwise provided herein. d) The foregoing provisions of this section (as well as any other provisions dealing with indemnity and the like by Tenant of Jordan's) shall be deemed to be modified in each case by the insertion in the appropriate place of the language; "except as otherwise provided in Mass. G.L. Ter. Ed., C. 186, Section 15". Section 5.02. Other Insurance. a) Jordan's shall keep, or cause the Condominium to keep, the Premises insured against loss or damage by fire, with all risks of physical loss and such other insurance as from time to time the then holder of the first mortgage which includes the Premises shall require or Jordan's otherwise shall deem advisable, in amounts not less than the replacement value thereof or such greater amounts as Jordan's shall deem advisable, and with such deductibles as Jordan's shall deem advisable, but specifically excluding any property installed by or belonging to Tenant, including, without limitation, Tenant's fixtures, merchandise, equipment and inventory. Tenant acknowledges that the insurance on the Unit which includes the Premises will be -14- GSDOCS11499831.6 8/12/2005 10:40 AM 4 maintained by the Walkers Brook Crossing Condominium Trust in accordance with the terms of the Condominium Documents. b) Tenant also agrees that it shall continuously keep its fixtures, merchandise, equipment and other personal property from time to time located in, on or about the Premises, insured under a policy or policies, written by reputable and financially sound, duly licensed and admitted insurance companies against loss or damage by fire with the usual all risk of physical loss endorsement (or the then successor equivalent) in amounts equal to the full replacement cost thereof, with a commercially reasonable deductible if Tenant so elects. Prior to the Commencement Date, no less often than annually thereafter, and at any other time upon the request of Jordan's, Tenant shall furnish to Jordan's evidence of such continuous insurance coverage satisfactory to Jordan's. In addition, Tenant shall carry loss of income coverage in a commercially reasonable amount and shall furnish Jordan's evidence of such coverage. c) Insofar as and to the extent that the following provision may be effective without invalidating or making it impossible to secure insurance coverage obtainable from responsible insurance companies doing business in The Commonwealth of Massachusetts (even though extra premium may result therefrom): Jordan's and Tenant mutually agree that with respect to any loss which is covered by insurance then being carried by them, respectively, the one carrying such insurance and suffering said loss releases the other of and from any and all claims with respect to such loss; and they further mutually agree that their respective insurance companies shall have no right of subrogation against the other on account thereof. In the event that an additional premium is payable by either party as a result of this provision, the other party shall reimburse the party paying such premium the amount of such extra premium. If, at the written request of one party, this release and non-subrogation provision is waived, then the obligation of reimbursement shall cease for such period of time as such waiver shall be effective, but nothing contained in this section shall be deemed to modify or otherwise affect releases elsewhere herein contained of either party for claims. The provisions of this subsection c) shall inure to the benefit of the trustees of the Walkers Brook Crossing Condominium Trust. ARTICLE VI Assignment. Subletting Section 6.41 Prohibition Against Tenant's Assianment a) Neither this Lease nor any interest herein, whether legal or equitable, shall be assigned, alienated, pledged, or hypothecated voluntarily or by operation of law, nor shall the Premises be sublet in whole or in part except as permitted with Jordan's consent, which may be withheld in its sole and absolute discretion. A transfer of any controlling interest in Tenant shall be deemed an assignment of this lease for which the Landlord's consent is required. Likewise any transfer of the management of the restaurant at the Premises shall be deemed an assignment for which the consent of the Landlord is required, it being understood that a change in the person acting as restaurant manager is not a transfer of the management of the restaurant for these purposes. -15- GLf j SDQCS\1499831.6 8/1212005 10:40 AM b) No assignment or subletting under Section 6.01(b) shall release Tenant from any of its obligations hereunder, and Tenant shall remain fully liable therefor, ARTICLE VII Default and Bankruntcv Section 7.01 Default by Tenant Any one of the following shall be considered an "Event of Default": a) failure by Tenant to pay any installment of minimum rent, percentage rent or any other sums required to be paid by Tenant hereunder and such sum remains unpaid for a period of ten (10) days after receipt of written notice of default; but no such notice shall be required more than two tunes in any consecutive twelve (12) month period (in which case said 10 days shall run from the due date of such sum); or b) failure by Tenant to observe or perform any of the other terms, covenants, conditions or obligations of this Lease for a period of thirty (30) days after receipt of written notice of such default (unless such default cannot reasonably be cured within thirty (30) days and in such case, Tenant shall have commenced to cure said default within thirty (30) days and thereafter continues diligently to pursue to completion the curing of same); or c) if Tenant in violation of this Lease shall vacate, abandon or sublease the Premises or assign this Lease; and the Premises being closed to the public for more than two (2) days in any consecutive twelve- (12-) month period or for more than an aggregate of four (4) days during the Term (except for closings due to force majeure, casualty, condemnation or as otherwise permitted under this Lease) shall be deemed vacating or abandoning, but Tenant may close the Premises for remodeling after the 5`" anniversary of the Commencement Date but not for more than one time every five years or for more than twenty (20) days during any such remodeling period; or d) the commencement of any of the following proceedings with such proceeding not being dismissed within sixty (60) days after it has begun: a petition in bankruptcy being filed or Tenant being adjudicated a bankrupt or insolvent, or file any petition or answer seeking any reorganization, readjustment, or similar relief for itself under any present or future Federal, State or other bankruptcy statute, law or regulation, or the making of an assignment for the benefit of creditors; or a receiver, guardian, trustee or similar officer being appointed to take charge of all or a substantial part of Tenant's property by a court of competent jurisdiction; or e) the leasehold estate hereby created shall be taken by execution or by other process of law; or f) Tenant's loss of its franchise to operate a Fuddrucker's restaurant at the Premises. GSDQCS11499831.6 8/1212005 10:40 AM -16- y~dlle . In any such Event of Default, Jordan's, at its sole option and without limiting it in the exercise of any other right or remedy it may have at law or in equity, shall have the following immediate rights: Should any Event of Default occur then, notwithstanding any license of any former breach of covenant or waiver of the benefit hereof or consent in a former instance, Jordan's lawfully may, in addition to any remedies available to Jordan's under applicable statutes or case law, or otherwise, immediately or at any time thereafter, and, to the maximum extent permitted by law, without demand or notice (and Tenant hereby expressly waives any notice to quit possession of the Premises), enter into and upon the Premises or any part thereof in the name of the whole and repossess the same as of Jordan's former estate, and expel Tenant and those claiming through or under it and remove its or their effects without being deemed guilty of any manner of trespass, and without prejudice to any remedies which might otherwise be used for arrears of rent or preceding breach of covenant and/or Jordan's may send written notice to Tenant terminating the term of this Lease; and upon the first to occur of. (i) entry as aforesaid; or (ii) the fifth (5th) business day following the sending of such notice of termination, the term of this Lease shall terminate. Tenant covenants and agrees, notwithstanding any termination of this Lease as aforesaid or any entry or re-entry by Jordan's, whether by summary proceedings (and, to the maximum extent permitted by law, Tenant hereby expressly waives any notice to quit possession of the Premises prior to the institution of such summary proceedings), termination, or otherwise, to pay on the days when such rent would otherwise have been due and payable hereunder the amount of all rent hereunder (after receiving credit for any rent received from any re-letting of the Premises) or, at the election of Jordan's, to immediately pay and be liable as liquidated damages, such a sum as at the time of such termination represents the amount of the excess of the total rent and other benefits which would have accrued to Jordan's under this Lease for the remainder of the lease term if the lease terms had been fully complied with by Tenant above the then fair rental value of the Premises. In no event shall Jordan's be obligated to relet the Premises or to otherwise mitigate its damages. If an Event of Default shall occur prior to the Initial Payment Date, then for the purposes hereof the Tenant shall be deemed to be liable for an amount equal to $400,000 in liquidated damages, it being the intent hereof to compensate the Landlord for the damages which the Landlord may suffer or incur as a result of such Event of Default and such amount is agreed by the Tenant to be a reasonable estimate of such damages and is not a penalty. After the Initial Payment Date, for the purpose of determination of the Landlord's damages as a result of an Event of Default of Tenant, it shall be assumed that the Tenant would have achieved Gross Sales during each twelve calendar month period after such Event of Default in an amount equal to the greater of (i) $4,000,000 or (ii) the average monthly Gross Sales during the period from the date of Initial Payment Date thorough the date of the Event of Default multiplied by twelve. Tenant and Jordan's hereby waive any right to trial by jury in any action, proceeding or counterclaim brought by one party against the other party on any matters whatsoever arising out of or in any way connected with this Lease, the relationship of the landlord and the tenant, Tenant's use or occupancy of the Premises, and/or any claim of injury or damage. Tenant agrees not to interpose any counterclaim of whatever nature or description in any proceeding tt 7 GSDOCSl1499831.6 8112/2005 10:40 AM 7 commenced by Jordan's for nonpayment of rent, minimum rent, percentage rent or any other amount due hereunder, provided the foregoing shall not be construed as a waiver of the right of Tenant to assert such claims in any separate action brought by Tenant. Jordan's shall in no event be in default in the performance of any of Jordan's obligations hereunder unless and until Jordan's shall have failed to perform such obligations within thirty (30) days or such additional time as is reasonably required to correct any such default after notice by Tenant to Jordan's properly specifying wherein Jordan's has failed to perform any such obligation. ARTICLE VIII Casualtv and Condemnation Section 8.01 The Premises and the Building a) If the Premises are rendered untenantable in whole or in part by fire or other casualty insured under Jordan's required insurance coverage and no other portion of the Unit shall be damaged, then Jordan's shall promptly repair (or cause to be repaired) the same to substantially the condition which they were in immediately prior to such casualty (excluding Tenant's furniture, personalty, merchandise and fixtures) but in no event shall Jordan's be required to spend more than the amount of the net insurance proceeds in making such repair. In the event of insufficient insurance proceeds, Tenant, at its option, may elect to supplement such insurance proceeds to enable the Premises to be built to such condition, or Tenant may elect to terminate this Lease by giving notice to such effect to Jordan's within thirty (30) days of being advised of such insufficiency by Jordan's, which termination shall be effective thirty (30) days after Jordan's receipt of such notice unless Jordan's then elects to supplement such insurance proceeds as aforesaid, in which event such termination notice shall be void and of no force or effect. Promptly after such repair, Tenant shall repair or replace as necessary, its furniture, personalty, merchandise and fixtures and re-open its store in the entire Premises. Tenant's minimum rent shall be reduced proportionately to its inability to fully utilize the Premises until the Premises shall be so repaired and Jordan's has reopened for business in the Unit. If the damage is more than fifty (50%) percent of the cost to replace the Premises and occurs during the last two (2) years of the Term, then either Tenant or Jordan's may cancel this Lease by notice given within thirty (30) days of the damage to the other unless Tenant exercises its option to extend the Term prior to the delivery of such notice, b) If any portion of the Unit is damaged or condemned by right of public domain, then Tenant may cancel this Lease by notice given to Jordan's within thirty (30) days of the damage or condemnation. c) If any portion of the Unit is damaged or condemned by right of public domain, then Jordan's may cancel this Lease by notice given to Tenant within ninety (90) days after the damage. qjq4 GSDOCS\I499831.6 8/12/2005 10:40 AM d) The terms "substantially damaged" and "substantial damage", as used in this section, shall have reference to damage of such a character as cannot reasonably be expected to be repaired or restored within one hundred eighty (180) days from the time that such repair or restoration work would be commenced. "Partial damage" is damage that is not substantial damage. e) Out of any award for any taking of the Unit or any other portions of the Condominium (including, without limitation, any taking of Tenant's-leasehold interest as aforesaid), Jordan's shall be entitled to receive and retain all taking awards, except that Tenant shall be entitled to receive and retain such amounts as may be specifically awarded to it in any such condemnation proceedings because of the taking of its trade fixtures or furniture or for many expenses or business loss to the extent Jordan's award is not thereby reduced and Tenant is not otherwise reimbursed for the same by Jordan's. f) The parties acknowledge that the restoration of the Unit, including the Premises, is governed by the provisions of the Condominium Documents and Jordan's shall not have liability to Tenant to the extent that under the Condominium Documents the restoration of the Premises shall not be made. ARTICLE IX Miscellaneous Section 9.01 Holdover Tenant's right to possession under this Lease shall terminate with the expiration or earlier termination of the Term. If Tenant and Jordan's are in good faith written negotiations for an extension of this Lease, the terms and conditions of this Lease shall continue for a period of up to sixty (60) days. Tenant shall be a tenant at sufferance at one and one-half (1.5) times the rent and charges hereunder and Jordan's shall be entitled to the benefits of all provisions of law with respect to summary recovery of possession from a holdover tenant. Section 9.02 Entrv and Self-Hell) Jordan's and its designees shall have the right to enter upon the Premises at all reasonable hours for the purpose of inspecting or making repairs to the same or exhibiting the same to prospective tenants, purchasers, lenders and insurers. In making any such entry or exercising any such rights under this Section 9.02 Landlord shall endeavor to interfere as little as reasonably possible with the ongoing operations of Tenant at the Premises. If repairs are required to be made by Tenant pursuant to the terms hereof or if Tenant is required to perform any other obligation under this Lease, and if Tenant refuses or neglects to commence such repairs or performance and complete the same with reasonable dispatch after the expiration of applicable notice and grace periods (except that no notice and no grace periods shall be required in an emergency), Jordan's may (but shall not be required so to) make or cause such repairs or performance to be done and shall not be responsible to Tenant for any loss or damage that may accrue to its stock or business by reason thereof. If Jordan's makes or causes such repairs or .19- 04s GSDOM1499831.6 8/12/2005 10:40 AM performance to be done, or endeavors so to do, Tenant agrees that it will forthwith, on demand, pay to Jordan's the cost thus incurred, and if Tenant shall default in such payment, Jordan's shall have the remedies provided in Article VII hereof. Section 9.03 Ouite Eniovment: Waiver: Payment: Invaliditv. Law Tenant, subject to the terms and provisions of this Lease and of the Condominium Documents, the R.EA and all title documents of record, on payment of the rent and observing, keeping and performing all of the terms and provisions of this Lease on its part to be observed, kept and performed, shall lawfully and quietly have and enjoy the Premises during the Term without hindrance or ejection by Jordan's or persons lawfully claiming under Jordan's. Failure on the part of Jordan's or Tenant to complain of any action or non-action on the part of the other, no matter how long the same may continue, shall never be deemed to be a waiver by a parry of any of its rights hereunder. Further, it is covenanted and agreed that no waiver at any time of any of the provisions hereof by either party shall be construed as a waiver of any of the other provisions hereof, and that a waiver at any time of any of the provisions hereof shall not be construed as a waiver at any subsequent time of the same provisions. The consent or approval of either party to or of any action by the other party requiring a party's consent or approval shall not be deemed to waive or render unnecessary consent or approval to or of any subsequent similar act. No payment by Tenant, or acceptance by Jordan's, of a lesser amount than shall be due from Tenant to Jordan's shall be treated otherwise than as a payment on account. The acceptance by Jordan's of a check for a lesser amount with an endorsement or statement thereon, or upon any letter accompanying such check, that such lesser amount is payment in full, shall be given no effect, and Jordan's may accept such check without prejudice to any other rights or remedies which Jordan's may have against Tenant. If any term or provision of this Lease, or the application thereof to any person or circumstance shall, to any extent, be invalid or unenforceable, the remainder of this Lease, or the application of such term or provision to persons or circumstances other than those as to which it is held invalid or unenforceable, shall not be affected thereby, and each term and provision of this Lease shall be valid and be enforced to the fullest extent permitted by law. Except as herein otherwise expressly provided, the terms hereof shall be binding upon and shall inure to the benefit of the successors and assigns, respectively, of Jordan's and Tenant. The reference contained to successors and permitted assigns of Tenant is not intended to constitute a consent to assignment by Tenant. This Lease shall be governed exclusively by the provisions hereof and by the laws of The Commonwealth of Massachusetts as the same may from time to time exist. Section 9.04 Entire Agreement This Lease constitutes the entire agreement between the parties with respect to the Premises. All prior conversations or writing between the parties hereto or their representatives with respect to the Premises and this Lease are hereby superseded, revoked and extinguished. This Lease shall not be modified except by a writing executed by both Tenant and Jordan's. .20_ GSDOCS\1499831.6 8/1212005 10:40 AM q~q b Section 9.05 Notice Unless otherwise provided in this Lease, all notices required under this Lease to Jordan's or Tenant shall be in writing and addressed as follows: To Jordan's: Jordan's Furniture 100 Stockwell Drive Avon, MA 02322 Attn: Eliot Tatelman Jordan's Furniture 110 Stockwell Drive Avon, MA 02322 Attn: John Hanley with a copy to: Goulston & Storrs . 400 Atlantic Avenue Boston, MA 02110 Attn: Jordan's Furniture To Tenant: P.O. Box 5599 Gloucester, MA 01930 with a copy to: Peter R. Spirgel, Esq. Flaster/Greenberg, P.C. 1810 Chapel Avenue West Cherry Hill, New Jersey 08002 All notices shall be deemed to be properly served if delivered to the appropriate address by hand delivery, registered or certified mail (with postage prepaid and return receipt requested), or by a nationally recognized overnight courier (such as Federal Express or Airborne). Notice shall be effective when received or refused. Section 9.06 Advertisins and Sianaze At anytime during the first sixty days after the Commencement Date Tenant, at its expense, may install advertising on the Jordan's trifold sign for a period not in excess of 30 days without charge to Tenant, provided that the text of such advertising and the design thereof shall be subject to Jordan's reasonable approval. After the end of such 30-day period, Tenant may continue to maintain such advertising for up to an additional five months provided that Tenant pays to Jordan's a fee in respect thereof, as additional rent hereunder, in the amount of $10,000 per month which payment shall be made monthly in advance. If such five month period is not consecutive next following the first thirty-day period, then any time that Tenant elects to utilize a trifold sign Tenant shall pay for all the costs of the removal and replacement of Landlord's sign. Tenant shall also have the right, at its sole cost and expense, and subject to receipt of all necessary governmental permits therefor, to install its signage in the exterior locations of the -21- ydq1 08DOCSU 499831.6 8/1212005 10:40 AM Unit on which Johnny's Luncheonette signs are currently installed. The size of such signs and the location shall be exactly the same as that currently maintained by Johnny's Luncheonette and the design thereof shall be subject to Landlord's reasonable approval. All signage within the Premises shall be professionally prepared and if visible from outside the Premises shall be subject to the reasonable approval of Jordan's. No Tenant advertising, marketing or signage shall contain Jordan's name, logo or the like without Jordan's approval, not to be unreasonably withheld. Tenant agrees that Jordan's may (at its sole and absolute discretion, without having any obligation to do so) refer to the Tenant in Jordan's advertising campaigns, provided Jordan's does so in a manner that is consistent with Tenant's image. If Tenant objects to how its brand is being presented in any advertisement, Tenant shall so notify Jordan's, which notice shall set forth the specifics of the objection, and Jordan's shall either address the objection in a manner reasonably satisfactory to Tenant or immediately, or as soon thereafter as is reasonably possible, cease referring to Tenant in such advertisement. Section 9.07 No Broker Both parties represent and covenant that they have incurred no claims for broker's commissions or finder's fees in connection with the execution of this Lease and shall be responsible for their own costs and expenses incurred in connection with this Lease. Section 9.08 Parking Tenant agrees to cause its officers, agents, employees, contractors, licensees and concessionaires to park their cars only on such areas as Jordan's may from time to time designate as employee parking areas, and such employee parking areas may be located outside of common areas serving the Building but within a reasonable distance, provided that if outside said areas, then Jordan's shall provide transportation to and from same. Tenant shall furnish to Jordan's, within five (5) days following the request of Jordan's therefor, the automobile license numbers of the vehicles customarily used by Tenant and Tenant's officers, agents, employees, contractors, licensees and concessionaires. If Tenant or any officer, agent, employee, contractor, licensee or concessionaire of Tenant shall park his or her car other than in designated employee parking areas, and such car remains in such non-designated area for more than twenty-four (24) hours after oral or written notice to Teriant (which notice shall not be required more than twice in any twelve (12) month period for the same car or Tenant employee), then Jordan's shall have the right and privilege to have any such car towed away at Tenant's expense. In addition to the foregoing, Landlord shall mark two spaces in the parking tot immediately adjacent to the outside front door of the Premises as being available for Tenant's customers for pick-up service. Section 9.09 Successor: Non-Recourse: Force Maieure All covenants of Jordan's contained in this Lease shall be binding upon Jordan's and Jordan's successors only with respect to breaches occurring during Jordan's and Jordan's successors' respective ownership of Jordan's interest hereunder. In addition, Tenant specifically agrees to look solely to Jordan's interest in the Building for recovery of any judgment from Jordan's; it being specifically agreed that neither Jordan's nor anyone claiming under Jordan's shall ever be personally liable for any such judgment. It is further understood and agreed that -22- Nb4g GSDOCS11499831.6 8/12/2005 10:40 AM neither Jordan's nor Tenant shall be liable for failure to perform any obligation under this Lease in the event that such party is prevented from so performing by strike, lockout, breakdown, accident, order or regulation of or by any governmental authority, or failure of supply, or inability by the exercise of reasonable diligence to obtain supplies, parts, or employees necessary to furnish such services, or because of war or other emergency, or for any cause beyond such party's reasonable control (but financial inability shall never be deemed to be an event beyond either party's control), or for any cause due to any act or neglect of the other party or its servants, agents, employees, licensees, or any person claiming by, through or under such party. The provisions of the last preceding sentence, however, shall not be applicable to, nor in any way affect, reduce or abate Tenant's obligation under this Lease timely to pay all rent and other charges to be paid by Tenant pursuant to the terms hereof. In the event of any breach or default of Jordan's under this lease including a breach of warranty, Tenant shall not have the right to terminate this lease except in the case of a wrongful eviction (either actual or constructive) of Tenant by Jordan's from the Premises. In no event shall Jordan's ever be liable to Tenant for any indirect or consequential damages. Section 9.10 Estonnel: Memorandum of Lease Recognizing that both parties may find it necessary to establish to third parties, such as accountants, banks, mortgagees, or the like, the then current status of performance hereunder, either party, on the written request of the other made from time to time, will promptly furnish a written statement of the status of any matter pertaining to this Lease. Tenant agrees not to record the within lease, but each party hereto agrees, on request of the other, to execute a Notice of Lease in recordable form and complying with applicable Massachusetts laws, and reasonably satisfactory to Jordan's and Tenant's attorneys. Such notice of lease shall not be recorded until the Condominium has been established.and Jordan's has acquired fee title to the Unit. In no event shall such document set forth the rental or other charges payable by Tenant under this Lease; and any such document shall expressly state that it is executed pursuant to the provisions contained in this Lease, and is not intended to vary the terms and conditions of this Lease. Section 9.11 Mortp-avee Provisions After receiving written notice from any person; firm, or other entity, that it holds a mortgage (which term shall include a deed of trust) which includes as part of the mortgaged premises the Premises, Tenant shall, so long as such mortgage is outstanding, be required to give to such holder the same notice as is required to be given to Jordan's under the terms of this Lease, but such notice may be given by Tenant to Jordan's and such holder concurrently. It is further agreed that such holder shall have the same opportunity to cure any default, and the same time within which to effect such curing, as is available to Jordan's; and if necessary to cure such a default, such holder shall have access to the Premises. With reference to any assignment by Jordan's of Jordan's interest in this Lease, or the rents payable hereunder, conditional in nature or otherwise, which assignment is made to the holder of the first mortgage or deed of trust on the Premises, Tenant agrees: (a) that the execution thereof by Jordan's, and the acceptance thereof by such holder, shall never be deemed an assumption by such holder of any of the obligations of aci -z3- qj GSDOCSU 499831.6 8/12/2005 10:40 AM Jordan's hereunder, unless such holder shall, by written notice sent to Tenant, specifically otherwise elect; and (b) that, except as aforesaid, such holder shall be treated as having assumed Jordan's obligations hereunder only upon foreclosure of such holder's mortgage or deed of trust and the taking of possession of the Premises by such holder. It is agreed that the rights and interest of Tenant under this Lease shall be subject and subordinate to any mortgages or deeds of trust that may hereafter be placed upon the Unit or any portion thereof containing the Premises, and to any and all advances to be made there under, and to the interest thereon, and all renewals, modifications, replacements and extensions thereof, if the mortgagee or trustee named in said mortgages or deeds of trust shall elect by written notice delivered to Tenant to subject and subordinate the rights and interest of Tenant under this Lease to the lien of its mortgage or deed of trust; it is further agreed that any mortgagee or trustee may elect to give the rights and interest of Tenant under this Lease priority over the lien of its mortgage or deed of trust. In the event of either such election, and upon notification by such mortgagee or trustee to Tenant to that effect, the rights and interest of Tenant under this Lease shall be deemed to be subordinate to, or to have priority over, as the case may be, the lien of said mortgage or deed of trust, whether this Lease is dated prior to or subsequent to the date of said mortgage or deed of trust. Tenant shall execute and deliver whatever instruments reasonably may be required for such purposes forthwith upon demand. Jordan's shall obtain from the holder of any mortgage or deed of trust, which is prior to this Lease or to which this Lease is later subordinated, a so-called Non-Disturbance Agreement on such holder's standard form. Tenant agrees that, in the event of foreclosure of any such mortgage or deed of trust to which this Lease is subordinate (or deed or assignment in lieu of foreclosure thereof), at the election of the holder and provided Tenant's lease is acknowledged, Tenant shall attorn to such holder (and its successors and assigns) as the successor holder of Jordan's interest hereunder in which case, subject to any applicable terms and provisions of any written agreement between Tenant and such holder, this Lease shall continue in effect all as if it had been a lease entered into directly between Tenant and such holder (and its successors and assigns). The foregoing shall be self- operative; however, Tenant agrees, upon receipt of written request so to do, to execute such instruments,' if any, as may be reasonably required in order to give effect to the foregoing. Section 9.12 Condominium Tenant acknowledges receipt of the master deed for the Walkers Brook Crossing Condominium and the Declaration of Trust and By-Laws for the Walkers Brook Crossing Condominium Trust (the "Condominium Documents") which have been executed in connection with the organization of the Walkers Brook Crossing Condominium (the "Condominium") and agrees that this lease is subject to and subordinate to the Condominium Documents. Reference is also made to a certain Declaration of Reciprocal Easements Restrictions dated March 7, 2003 made by Walkers Brook Crossing LLC, a copy of which has been furnished to Tenant (the "REA"). Tenant acknowledges that this lease is subject and subordinate to the REA. Tenant covenants and agrees that it will not violate the terms and conditions of the REA or any terms and conditions set forth in the Condominium Documents, and Jordan's agrees that it will not violate the terms and conditions of the REA or the Condominium Documents to the extent such -24- Nd s° MOM) 499831.6 8112/2005 10:40 AM violation would adversely affect Tenant except to an immaterial extent. Landlord represents and warrants to Tenant that there is nothing contained in the Condominium Documents or in the REA which materially and adversely affects Tenant's right to operate its restaurant in the Premises as contemplated by this Lease. Section 9.13 Franchisine and Radius Tenant represents and warrants to Landlord that it holds a franchise to operate a Fuddrucker's restaurant from Magic Restaurants LLC ("Franchisor") and that within an area which is a circle, the center of which is the Premises and the radius of which is four miles Tenant has the sole right to operate a Fuddruckers restaurant. Tenant shall maintain its franchise to operate a Fuddruckers restaurant at the Premises in full force and effect during the term hereof and shall not default under its franchise agreement and if Tenant ceases to have the right to operate a Fuddrucker's restaurant at the Premises the same shall constitute an Event of Default hereunder and Landlord shall have the right to terminate this lease and shall have all rights and remedies which Landlord has under this lease or at law or in equity in the case of an Event of Default by Tenant. Tenant agrees that, except for the Fuddruckers restaurants in operation as of the date hereof, neither it nor any person, firm or entity affiliated with it shall operate a Fuddrucker's restaurant within a circle the center of which is the Premises and the radius of which is ten (10) miles, and that such area is -a reasonable area for this purpose and, without limitation, to Landlord's other rights and remedies in the case of any breach of this agreement, the Landlord shall have the right to have all Gross Sales of any such restaurant within such area in violation of this provision included within the Gross Sales hereunder and shall have the right to audit and inspect the books and records in respect of such restaurant. After the Initial Payment Date, Tenant or an affiliate of Tenant may open one (1) restaurant in the area nearby the . Burlington Mall in Burlington, MA without being in default under this Section 9.13. . As used herein Tenant's affiliates shall mean any entity or person which is controlled by, under common control with or controlling Tenant and shall also include any person or entity which has more than a 25% ownership interest in Tenant or any such other entity. So long as the franchise from Franchisor is in effect the following provision shall have effect: A. Landlord agrees that any proprietary items or marks prescribed by Franchisor may be removed by Tenant upon the expiration or earlier termination of this lease provided that Tenant makes all repairs caused by any such removal. B. Landlord shall give Franchisor notice (at the same time this notice is given to Tenant) of all defaults under this lease provided that Landlord has been given Franchisor's notice address. C. During the term of this Lease Franchisor shall have the right to enter upon the Premises to inspect the same. yj5 -25- GSDOM1499831.6 8/12/2005 I0:40 AM D. Notwithstanding any prohibitions herein, Tenant may assign this lease to Franchisor or any other franchisee of Franchisor (which has a net worth of at least $2,000,000) provided that Franchisor or such franchisee assumes all of the obligations of Tenant under this lease coming due on and after the date of such transfer, notice of such transfer is given to Landlord at least ten days prior to the date thereof and Tenant shall not be relieved of its obligations under this lease as a result of any such. transfer and shall be bound under this lease jointly and severally with Franchisor or such franchisee; however, except with the prior consent of Frachisor, Tenant may not assign this lease to any other franchisee of Franchisor unless it has first offered to assign this Lease to Franchisor and Franchisor had failed to exercise its option to accept such assignment, it being understood that the Landlord has no obligation to determine whether or not this condition has been satisfied.. Section 9.14 Awning Subject to the Tenant obtaining all necessary governmental permits therefor and also any required permits or approvals from the Trustee of the Walkers Brook Crossing Condominium Trust and from the owners of the unit occupied for a Home Depot store, and subject also to the Tenant obtaining the reasonable approval of the Landlord to the design, size and specific location thereof, Tenant shall have the right to install awnings over the restaurant windows and entry to the Premises and if Tenant installs the same Tenant shall maintain the same in good order and . condition at all times and at the expiration of the Term or any earlier termination thereof Tenant shall either leave the awnings in place or remove the same, as Landlord directs. . Section 9.15 Securitv Interest Tenant represents and warrants that its affiliates The Boland Group I, LLC and The Boland Group II, LLC (the "Tenant Affiliates") operates Fuddrucker's restaurants in the following two locations: Saugus, MA and North Andover, MA (the "Existing Locations"). Tenant hereby grants to Landlord a security interest in the Personal Property and all proceeds and profits therefrom and by the execution hereof Tenant's Affiliates hereby grant Landlord a security interest in all personal property at the Existing Locations and all proceeds and profits thereof (the "Collateral"). At the request of Landlord Tenant and Tenant's Affiliates shall each enter into a security agreement with Landlord confirming the granting of such security interest upon terms and conditions which are reasonably satisfactory to Landlord and Tenant. Landlord agrees that it shall subordinate its security interest herein granted to the security interest of any institutional lender providing funds to Tenant for the acquisition of the Personal Property or any personal property being acquired by Tenant's Affiliates to be used in the operation of the Existing Stores or the Premises or to provide working capital for the Tenant or Tenant's Affiliates. The security interest granted hereby shall otherwise be superior to any other security _2g_ 4d~ GSDOCS\1499831.6 8118/2005 10:20 AM interest in the Collateral. Tenant and Tenant's Affiliates, as the case may be, shall maintain the Collateral in good order and condition and shall insure the same and shall name the Landlord as an additional insured as the Landlord's interest shall appear. If an Event of Default of Tenant shall occur hereunder Landlord shall have the right to foreclose upon its security interest and to sell the Collateral in a public or private sale and Tenant and Tenant's Affiliates agree that ten (10) days advance notice of any such sale shall be reasonable notice for such purposes. Landlord shall have the right to make a bid for the Collateral or any part thereof at any such sale. Landlord shall have no obligation with respect to the maintenance of the Collateral, and Tenant hereby waives all rights and remedies against Landlord in respect of Landlord's exercise of any of its rights as a secured party. Landlord shall have the right to make all filings to evidence its security interest and any continuation of such filings. The security interest granted hereby is granted as security for the Tenant's obligations under this lease. IN WITNESS WHEREOF, the parties have hereunto set their hands and seals as of the day and year first above written. LANDLORD: JORDAN'S FURNITURE, INC. f Its_,o.~&~"' TENANT: By: By: THE BOLAND GROUP 111, LLC James L. Boland, Its Manager TENANT'S AFFILIATES THE BOLAND GROUP 1, LLC James L. Boland, Its Manager 4ds3 .27. GSDOCS9499831.6 8/12/2005 10:40 AM interest in the Collateral. Tenant and Tenant's Affiliates, as the case may be, shall maintain the Collateral in good order and condition and shall insure the same and shall name the Landlord as an additional insured as the Landlord's interest shall appear, If an Event of Default of Tenant shall occur hereunder Landlord shall have the right to foreclose upon its security interest and to sell the Collateral in a public or private sale and Tenant and Tenant's Affiliates agree that ten (10) days advance notice of any such sale shall be reasonable notice for such purposes. Landlord shall have the right to make a bid for the Collateral or any part thereof at any such sale. Landlord shall have no obligation with respect to the maintenance of the Collateral, and Tenant hereby waives all rights and remedies against Landlord in respect of Landlord's exercise of any of its rights as a secured party. Landlord shall have the right to make all filings to evidence its security interest and any continuation of such filings. The security interest granted hereby is granted as security for the Tenant's obligations under this lease. IN WITNESS WHEREOF, the parties have hereunto set their hands and seals as of the day and year first above written. LANDLORD: JORDAN'S FURNITURE, INC. By: TENANT: , Its THE BOLAND GROUP III, LLC By: oland, Its Manager JameYAFFILIATES TENAN THE BOLAND GROUP 1, LLC By: NCI James L. BolaI Its M nnger qj91 GSDOCS\1499831.6 8112/2005 10:40 AA4 jq.,J6Ak M Iato & $1 MRS jail' 1` q»q16 P.gg3EgD3 F.'6A~ ~NWA 1808eco►~d Puddruckers - The World's Greatest Hamburger xhIZ tr C IVE'SH SOW & SALADS ©2005 Fuddruckers. All rights reserved. Page • 1 of 1 WOMVSGREA1 11B • 2/311B l; Original Fudd Burg SPEMETY BM Three Cheese- Qu Swiss lWeit • Mushn Svriss Cheese Bacon Cheddar - 5 Sauthwest - Smoke Pepper Jack Hat.Radm Burger Cheddar & -Spicy Ch Portzbeiis Mushm Pofte eRa muss m. NS httn•//www fiirlc nwk-nmc mmn/ 7!?7/?M5 "MMMAWAS ''WORLD'S (NEATEST MENU, . TOPPINGS BAR * ORES Fuddruckers - The World's Greatest Hamburger was EX0," ~r i t~l?I~ ~,ALS 09+L MN F+MES @ 2005 Fuddruckers. All rights reserved. EKOTIC BURGER Ostrich Burger- 97 Turkey Burger - A I SWman Burger- 0 Garden Burger- VE Ribe ye Steak Sand "Best In Show" Jui {Sane items can the all locations and ma, in-restaurant orders 4840 Page 1 of 1 WORLD'S R EATT ES T MENU* TOPPINQ5 M-R e, ORES Itttp://www_fuddruckers.cnm/ 7i~^~i~nns Fuddruckers - The World's Greatest Hamburger Page 7 of 1 E?i€}7K ~tlitrtCl~t7~ ORDERA FUDD« #1 112 1h. Bu #2113 ifs l3a. Fries & Q #3 crispy Ch fries & Co #4 Lite marY4 Soup & 0 #5 Original C Sandwich FUDDS WILL P qAb2 WORLD'S RE TE T MENU* TOPPINGS BAR 40 fRES httn://www.fuddruckers.com/ 707nnm C?2005 Fuddruckers. All rights reserved. F'uddruckers - The World's Greatest Hamburger Page I of 1 MtJWRas WORIDLY 0 100 Original Chiaimn 5 GRILLE} St IAA Regin' Cajun - Caju Pepper jack Portabolla &Mss - I Mushrv MS& $Mss FuO.Js "Caesert 1c) Caas2r Saud AiNAmricain - Smc & American chi Santa Fe - owaml. Torlilla $Ifts ©2005 Fuddruckers. All rights reserved, ydb3 httD://www.fuddruckers.com/ 7/27/2005 MMSBU xMS WORD'S t, to l tb t MENU b TOPPINGS BAR I► :FR£S. Fuddruckers - The World's Greatest Hamburger Page 1 of 1 ~ItCJ71C BL1xi~iEf!25 FIDD MEALS ctncx~i~ SA#11~VifCkiES 92005 Fuddruckers. All rights reserved. FRESH SAS J Zesty cassam: Rit,eya.Steak CHAen Alaskan Salmo Fudds Classic 1 FUDD*S 14GNAT Crispy thicken - C 'Commoes & wild n' southwest taco » gow Crem, C,ita a oriental lchf den » i'~(ar.;;srln C~a-ang~s•. L41 L4 httn-//www fi ddmrkPrc n.nm/ 7/27/7005 w mm GREATEST MENU* TOPPINGS w a FRES ~►ss Fuddruckers - The World's Greatest Hamburger Page 1 of 1 EXOMBUMMS 'ROD MEALS CHl~ll ~AF#l~1htIS1IFS STIES MADE FF !ri three, sho... L Fudds Fries Onion Ftinp HowV Chill Cheeet J"mbo Basket of F Mao Cheese Smokehouse. BBq Cole Slaw Fr sly Card I on $a]& 451 ° it Y su;~sr1~ 1~~`~~:? Ix~ ©2005 Fuddruckers. All rights reserved. yobs httn•//unxnxrfiirlrlnir-irvrc r•nm/ 7owinns worm n GREATEST MENU s TOPPINGS BAR 4, fRES- s~ Fuddruckers - The World's Greatest Hamburger IXOTICBMas i FUDD MEALS ©2005 Fuddruckers. All rights reserved. Page 1 of 1 ' omm GREATEST MENU * TopPtNGS BAS, . * RE S IaDS MENU for VJds 12 & Unt Intiuft dflnk arts Chaosebmi ar & Fr Hat M. 9 & Fries Griiind Chapse b F Chicken Fingers & ar#ni &Chpesa {Smo storm to the -5t all i aLions and r In-mstautant -orders yd b6 httn•// u rw fliAdrnrkerc r•.nm/ 7117/9005 Fuddruckers - The World's Greatest Hamburger Page 1 of 1 tt OMNSARDWKM TRH ~ ~ ►~S 1015 Mid FRESH BEVERAGE OX Homemade shake Cfi"Olato, Strawbor Rjgot Boar Ftpat - tE Ice Crean in a Fwsf ft"rnloss Drink's F onlain Drinks and lGa old Begr- Darr SL0Oa0 waxer Coffee or 3dotToa (SOMO items on Rio atail'Imatiom ano r in-restaurant orders 02005 Fuddruckers. All rights reserved. NU 4 TOPPINGS OAR 0 fRES itttr+•//ixnxn:~ f,1AAr11nt,v" n^m/ 171'117IOnrlG EXHIBIT D Construction Insurance Reauirements Prior to commencement of any work by Tenant and until the completion of Tenant's work, Tenant shall maintain, or cause to be maintained, property insurance under an all risk form, covering Jordan's, Jordan's agents and beneficiaries, the Condominium Trustees, Jordan's architect, contractor and subcontractors, Tenant and Tenant's contractors, as their interests may appear, against loss or damage by fire, vandalism and malicious mischief, and such other risks as are customarily covered by the so-called all risk of physical loss form upon all Tenant's work in place, and all materials stored at the site of Tenant's work and all materials, equipment, supplies and temporary structures of all kinds incident to Tenant's work, all while forming a part of, or contained in, such improvements or temporary structures while on the Premises or when adjacent thereto while on common areas, drives, sidewalks, or streets, all in the full insurable value thereof at all times by reputable insurance companies licensed and admitted to do business in the Commonwealth of Massachusetts with an A- or better financial rating. In addition, Tenant agrees to require all contractors and subcontractors engaged in the performance of Tenant's work to effect and maintain and deliver to Tenant and Jordan's certificates evidencing the existence of, prior to the commencement of Tenant's work and until completion thereof, the following insurance coverages: a) . Worker's Compensation Insurance - In accordance with the laws of the Commonwealth, including Employer's Liability Insurance, to the limit of $1,000,000 each accident. b) Commercial General Liability Insurance in the same form as Tenant is required hereunder to carry, with a minimum limit of liability of $5,000,000 combined liability and property damage on an occurrence form; or in such greater reasonable amounts as Jordan's may hereafter from time to time advise Tenant in writing. c) Business Automobile Liability, including "non-owned and hired" automobiles, with a combined single limit of $5,000,000. Prior to the commencement of Tenant's work, Tenant shall deliver to Jordan's certificates of all required insurance, and evidence of the payment of premiums thereon (and certificates of renewal, and evidence of premium payments with reference thereto, where appropriate). All such insurance shall provide, and certificates thereof shall state, that the same is non-cancellable and non-amendable without thirty (30) days' prior written notice to Jordan's. D-1 GSDOCS11499831.6 8112/2005 10:40 AM 44 69 ASSET PURCHASE AGREEMENT This is an Agreement, entered into on August 11~, 2005, by and among The Boland Group III, LLC, a Massachusetts limited liability company ("Buyer"); Johnny's at Jordans, Inc., a Massachusetts corporation ("Seller"); John Furst and Neal Solomon (together, the "Shareholders") (Seller and the Shareholders sometimes referred to hereinafter as the "Selling Parties"); and, for the limited purposes of the escrow provisions in this Agreement, Flaster/Greenberg P.C. (the "Escrow Agent"). Background The Shareholders own all of the issued and outstanding stock of Seller, which is engaged in the restaurant business located at 50 Walker's Brook Drive, Reading, MA 01867 (the "Business"). Buyer desires to purchase from Seller certain assets used in the Business, and Seller is willing to sell such assets to Buyer on the terms and conditions of this Agreement. NOW, THEREFORE, acknowledging the receipt of adequate consideration and intending to be legally bound, the parties hereby agree as follows: 1. Purchase and Sale of Assets. Buyer agrees to purchase from Seller, and Seller agrees to sell, assign, transfer, convey and deliver to Buyer all of Seller's right, title, and interest in and to all of the equipment used in the Business, as listed on Schedule 1.1 (the "Assets" or "Equipment"), free and clear of any security interests, leases, liens, claims, restrictions, equities and encumbrances. 2. Seller's Liabilities. Buyer shall not assume any of Seller's debts, obligations or liabilities whether fixed or contingent and whether arising before or after the Closing Date (as hereinafter defined). 3. Purchase Price and Payment. The purchase price for the Assets and all other rights acquired under this Agreement (the "Purchase Price") shall be Five Hundred Thousand Dollars ($500,000). The Purchase Price shall be paid as follows: (i) a deposit of Twenty Thousand Dollars ($20,000.00) shall be paid to the Escrow Agent by wire transfer of inunediately available funds (the "Escrow Funds") to be held in escrow pursuant to the provisions of Section 11 of this Agreement; and (ii) the remaining Four Hundred Eighty Thousand Dollars ($480,000.00) shall be paid at Closing by wire transfer of immediately available funds. 4. Representations and Warranties of Selling Parties. The Selling Parties, jointly and severally, hereby make the following representations and warranties to Buyer, each of which shall survive Closing: 4.1. Existence; Good Standing; Authority. Seller is duly organized, validly existing and in good standing under the laws of Massachusetts and has the corporate power and authority to own its properties and to carry on its business in the manner and in the place or places where such properties are now owned and such business is now conducted, and to enter into this Agreement and carry out the transactions contemplated by this Agreement. 4d0 4.2. Title to Assets. Seller is the owner of and has good and marketable title to, all of the Purchased Equipment, free and clear of all security interests, leases, liens, claims, restrictions, equities and encumbrances. No other person has any interest in the Equipment or has made any claim relating to the Equipment. 4.3. Conflicts. Neither of the Selling Parties requires the consent of any third party to perform its or his obligations under this Agreement. Neither the execution nor the performance of this Agreement will breach or violate the terms of any other agreement to which the Selling Parties are a party or by which they are bound, or breach or violate any order, decree or regulation of any governmental agency, nor is any Selling Party aware of facts which would prevent the performance of the obligations of the Selling Parties under this Agreement. 4.4. Authorization. Seller is legally permitted, and has been duly authorized by all corporate action of its shareholders and directors to consummate this Agreement and the transactions contemplated herein. 4.5. Binding Nature. The Selling Parties have full right and authority to consummate all transactions contemplated by this Agreement, and this Agreement is fully valid and binding upon the Selling Parties in accordance with its terms, except as may be provided in bankruptcy or similar proceedings. 4.6. Litigation. There are no actions, suits, proceedings, or investigations pending or, to the best of the knowledge of the Selling Parties, threatened, in any court or before any governmental agency or instrumentality against the Selling Parties relating to the Business, nor are the Selling Parties aware of facts reasonably likely to give rise to such actions. 4.7. Other Agreements. There are no agreements, liens, outstanding judgments, orders, writs, injunctions, decrees, or determinations materially affecting Seller or the Assets and/or materially affecting Buyer's rights to acquire the Assets; and to the best of the knowledge of the Selling Parties there are no facts by reason of which any such action or proceeding reasonably may be brought or any such judgment, order, writ, injunction, decree or determination reasonably may be obtained. 4.8. Taxes. Seller has paid in full all income, withholding, social security, unemployment, insurance, business privilege, property, state meal tax and payroll taxes, and all other taxes with respect to the Business that are due as of the date of this Agreement, and will promptly pay in full all such taxes with respect to the Business that are due through the Closing Date and for one (1) year thereafter as such taxes become due. 4.9. Brokers. The Selling Parties have not employed a broker in connection with the transactions described in this Agreement, nor entered into any other agreement that may cause any person to become entitled to a commission as a result of such transactions. 4.10. Solvency. Seller is not insolvent and Seller will meet its obligations as they become due both before and after Closing. 4.11. Condition of Equipment. The Equipment is in good working order, ordinary wear and tear excepted. U11) 160644 4.12. Misleading Statements. Neither this Agreement (including all Schedules and Exhibits) nor any other document or other instrument heretofore furnished by the Selling Parties to Buyer in connection with the transactions set forth herein contains any untrue representation, warranty or statement of any material fact or, to the best of the knowledge of the Selling Parties, omits to state and/or disclose any material fact and/or circumstance required to be stated and/or disclosed in order to make such representation, warranty, statement, document or other instrument not misleading. 5. Representations and Warranties of Buyer. Buyer hereby makes the following representations and warranties to Seller, each of which shall survive Closing: 5.1. Authorization. Buyer is legally permitted and has been duly authorized by all corporate action of its shareholders and directors to consummate this Agreement and the transactions contemplated herein. 5.2. Binding Nature. Buyer has full right and authority to consummate all transactions contemplated by this Agreement, and this Agreement is fully valid and binding upon Buyer in accordance with its terms, except as may be provided in bankruptcy or similar proceedings. 5.3. Existence; Good Standing; Authority. Buyer is duly organized, validly existing and in good standing under the laws of the Commonwealth of Massachusetts and has the limited liability company power and authority to own its properties and to carry on its business in the manner and in the place or places where such properties are now owned and such business is now conducted, and to enter into this Agreement and carry out the transactions contemplated by this Agreement. 5.4. Conflicts. Buyer does not require the consent of any third party to perform its obligations under this Agreement. Neither the execution nor the performance of this Agreement will breach or violate the terms of any other agreement to which the Buyer is a party or by which it is bound, or breach or violate any order, decree or regulation of any governmental agency, nor is the Buyer aware of facts which would prevent the performance of the obligations of the Buyer under this Agreement. .5.5. Litigation. There are no actions, suits, proceedings, or investigations pending or, to the best of the knowledge of the Buyer, threatened, in any court or before any governmental agency or instrumentality against the Buyer relating to the Business, nor is the Buyer aware of facts reasonably likely to give rise to such actions. 6. Closing. The closing for the transactions described herein ("Closing") shall take place at the offices of McCauley & Associates, L.L.C., 890 Winter Street, Suite 170, Waltham, MA 02451 or such other location as the parties shall hereafter mutually determine on August 22, 2005 or such other date as the parties shall mutually agree upon (the "Closing Date"). 7. Deliveries at Closing. 7.1. Deliveries by Seller. At Closing, the Selling Parties shall deliver to Buyer: .7.1.1. Bill of Sale. An executed Bill of Sale, in form and substance satisfactory to Buyer and its counsel. 41l 160644 7.1.2. Resolutions. Copies of the resolutions adopted by the Board of Directors and shareholders of Seller authorizing the execution and delivery of this Agreement and the performance of the transactions contemplated herein. 7.1.3. Other Documents. Such other documents and instruments as may be reasonably necessary or appropriate to carry out the transactions described in this Agreement. 7.2. Deliveries by Buyer. At Closing, Buyer shall deliver to Seller: 7.2.1. Purchase Price. The Purchase Price. 7.2.2. Resolutions. Copies of the resolutions adopted by the sole member of Buyer authorizing the execution and delivery of this Agreement and the performance of the transactions contemplated herein. 7.2.3. Other Documents. Such other documents and instruments as may be reasonably necessary or appropriate to carry out the transactions described in this Agreement. 8. Conditions of Closing. 8.1. Conditions Precedent to Obligations of Buyer. The obligation of Buyer to proceed with the Closing under this Agreement is subject to the fulfillment prior to or at Closing of the following conditions, any one or more of which may be waived in whole or in part by Buyer at its sole option: 8.1.1. Representations and Warranties; Covenants. Each of the representations and warranties of Selling Parties contained in this Agreement shall be true and correct on and as of the Closing Date. Each of Selling Parties shall have performed in all respects all of the covenants and complied with all of the provisions required by this Agreement to be performed or complied with by them at or before the Closing. 8.1.2. Litigation. No statute, regulation or order of any governmental body shall be in effect that restrains or prohibits the transactions contemplated hereby or that would limit or adversely affect Buyer's ownership of the Assets, and there shall not have been threatened, nor shall there be pending, any action or proceeding by or before any governmental body challenging the lawfulness of or seeking to prevent-or delay any of the transactions contemplated by this Agreement. 8.1.3. Lease Agreement. Buyer shall have entered into a lease agreement with the landlord of the Business on terms satisfactory to Buyer in Buyer's sole discretion. 8.1.4. Financing. Buyer shall have received financing of at least One Million, Two Hundred Thousand Dollars ($1,200,000.00) with an interest rate of no more than Seven and One-Half percent (7.5%) and a term of not less than eight (8) years with such other terms satisfactory to Buyer in Buyer's sole discretion. 8.1.5. Closing Documents. Buyer shall have received the documents referred to in section 7.1. 440)2.0 . 8.2. Conditions Precedent to Obligations of Selling Parties. The obligation of the Shareholders and Seller to proceed with the Closing under this Agreement is subject to the fulfillment prior to or at Closing of the following conditions, any one or more of which may be waived in whole or in part by the Shareholders or Seller, at the sole option of such parties, acting jointly: 8.2.1. Representations and Warranties; Covenants. Each of the representations and warranties of Buyer contained in this Agreement shall be true and correct in all material respects on and as of the Closing Date. Buyer shall have performed all of the covenants and complied in all respects with all of the provisions required by this Agreement to be performed or complied with by it at or before the Closing. 8.2.2. Litigation. No statute, regulation or order of any governmental body shall be in effect that restrains or prohibits the transactions contemplated hereby. 8.2.3. Termination of Lease Agreement. The Selling Parties shall have worked out a satisfactory termination of the Lease Agreement with the landlord of the Business. 9. Termination. Any party to this Agreement may terminate this Agreement if Closing has not occurred on or before August 31, 2005. 10. Indemnifications. 10.1. Indemnification By Selling Parties. The Selling Parties shall jointly and severally defend, hold harmless, and indemnify Buyer and its employees, officers, and shareholders against all liabilities, damages, losses, claims, judgments and expenses (including reasonable attorneys' fees and related costs) arising from (i) the conduct of the Business; or (ii) a breach of any of, the covenants, agreements, warranties, or representations of the Selling Parties contained in this Agreement. 10.2. Indemnification by Buyer. Buyer shall defend, hold harmless, and indemnify the Selling Parties against all liabilities, damages, losses, claims, judgments and expenses (including reasonable attorneys' fees and related costs) arising out of a breach of any of the covenants, agreements, warranties or representations of Buyer contained in this Agreement. 11. Escrow. 11.1 Appointment of Escrow Agent. Selling Parties and Buyer hereby appoint the Escrow Agent to serve as escrow agent under the terms of this Agreement. By executing the joinder below, the Escrow Agent hereby accepts such appointment. 11.2 Escrow Funds. The Escrow Agent shall hold the Escrow Funds in escrow until the earlier of. (a) the termination of this Agreement or (b) the Closing of the transactions contemplated hereunder. If this Agreement is terminated by any party for any reason, the Escrow Agent shall return the Escrow Funds to Buyer. All of the parties hereto acknowledge and agree that the Escrow Funds are to be considered a refundable deposit; that is, such funds are to be refunded to Buyer unless Closing occurs. If the Closing under this Agreement occurs, the Escrow Agent shall deliver the Escrow Funds to the Seller at the Closing. 4 1 160644 11.3 Duties of the Escrow Agent. The Escrow Agent is acting hereunder as escrow agent only and shall not be responsible or liable in any manner for the enforcement of any provision of this Agreement, except and only to the extent provided herein. The Escrow Agent is authorized to act upon any document believed by it to be genuine and to be signed by the person purported to have signed it, and will incur no liability in so acting. Upon delivery or deposit of the Escrow Fund in accordance with the terms of this Agreement (including a deposit of the Escrow Funds in a court of competent jurisdiction), the Escrow Agent shall be discharged from any liability or responsibility therefor and shall have no further obligations hereunder. The Escrow Agent may cease to serve at any time without incurring any liability hereunder. 11.4 Exculpation of Escrow Agent. The Selling Parties and Buyer, for themselves and any of their assigns or successors in interest, hereby waive any suit, claim, demand and cause of action of any kind which any or all of them may have or hereafter assert against the Escrow Agent with respect to the execution or performance by the Escrow Agent of its duties under this Agreement, unless such suit, claim, demand or cause of action is based upon gross negligence or willful misconduct of the Escrow Agent. If any party asserts a claim against the Escrow Agent concerning the Escrow Funds, then the party asserting such claim (and its respective principals) shall indemnify and hold harmless the Escrow Agent for its costs in connection therewith if the Escrow Agent successfully defends such claim. The Selling Parties and Buyer agree that the Escrow Agent shall not be liable for any error of judgment or for any act done or omitted by it in good faith, or for anything which it may, in good faith, do or refrain from doing in connection with this Agreement. 11.5 Inability of Designated Escrow Agent to Serve. In the event that the Escrow Agent designated herein is for any reason unable or unwilling to serve or to continue to serve as escrow agent, the Selling Parties and Buyer shall choose a mutually agreeable. person to become the new escrow agent. The new escrow agent shall have all of the rights and perform all of the duties and obligations of the Escrow Agent set forth in this Agreement, provided that no person shall serve as escrow agent unless he has consented in writing to abide by the terms of this Agreement applicable to the Escrow Agent and the Escrow Funds. If the Selling Parties and Buyer fail to designate a new escrow agent within ten (10) days after notice by the Escrow Agent of its resignation, the Escrow Agent shall be free to resign and to pick a substitute escrow agent of its choice (in its sole discretion); provided, however, such substitute escrow agent shall be an attorney or law firm or a certified public accountant or accounting firm. 11.6 Waiver of Conflict of Interest. The Selling Parties and Buyer agree that Flaster/Greenberg P.C.'s serving as Escrow Agent hereunder shall not disqualify the firm or any of its attorneys from representing Buyer in connection with this Agreement or any dispute arising between the parties hereto, or any other matter. 11.7 Written Instructions. The Selling Parties and Buyer agree to sign and deliver such written instructions to the Escrow Agent as may be necessary to cause release of the Escrow Funds pursuant to the terms of this Agreement or that the Escrow Agent may request to clarify or confirm the terms under which the Escrow Agent is to hold and/or disburse the Escrow Funds (or any portion thereof). vaI v 160644 11.8 Accounting. The Escrow Agent shall under no circumstances be compelled to furnish a formal accounting for the Escrow Funds; other than to notify the parties hereto as to the distribution or disbursement of the Escrow Funds. 11.9 Costs and Expenses. For services rendered pursuant to this Agreement, Buyer shall promptly reimburse the Escrow Agent, upon demand, the full amount of the Escrow Agent's actual costs and expenses incurred in connection with the performance of its duties under this Agreement. The Escrow Agent's fees for services rendered under this Agreement shall be based on the actual aggregate time charges incurred by the Escrow Agent, computed at its then current hourly rates (as they may be periodically adjusted), in addition to reimbursement for the Escrow Agent's costs and expenses. 12. Miscellaneous. 12.1. Amendments; Waivers. No amendment, modification, or waiver of any provision of this Agreement shall be binding unless in writing and signed by the party against whom the operation of such amendment, modification, or waiver is sought to be enforced. No delay in the exercise of any right shall be deemed a waiver thereof, nor shall the waiver of a right or remedy in a particular instance constitute a waiver of such right or remedy generally. 12.2. Notices. Any notice or document required or permitted to be given under this Agreement shall be deemed to be given on the date such notice is (i) deposited in the United States mail, postage prepaid, certified mail, return receipt requested, (ii) deposited with a commercial overnight delivery service with delivery fees paid, or (iii) transmitted by facsimile or electronic mail with transmission acknowledgment, to the following addresses or such other address or addresses as the parties may designate from time to time by notice satisfactory under this section: Selling Parties 30 Langley Road Newton Center, MA 02459 Buyer 35 Magnolia Avenue Magnolia, MA 01930 A copy of any notice to Buyer shall be sent to Peter R. Spirgel, Esquire, 1810 Chapel Avenue West, Third Floor, Cherry Hill, NJ 08002-4609 FAX (856) 661-1919, provided that such copy shall not itself constitute notice. A copy of any notice to the Selling Parties shall be sent to Donald McCauley, Esquire, McCauley & Associates, L.L.C., 890 Winter Street, Suite 170, Waltham, MA 02451, provided that such copy shall not itself constitute notice. 12.3. Governing Law. This Agreement shall be governed by the internal laws of Massachusetts without giving effect to the principles of conflicts of laws. Each party hereby consents to the personal jurisdiction of the Federal or Massachusetts courts located in Suffolk County, and agrees that all disputes arising from this Agreement shall be prosecuted in such courts. Each party hereby agrees that any such court shall have in personam jurisdiction over such party and consents to service of process by notice sent by regular mail to the address set forth above and/or by any means authorized by Massachusetts law. qJ15 160644 12.4. Language Construction. The language of this Agreement shall be construed in accordance with its fair meaning and not for or against any party. The parties acknowledge that each party and its counsel have reviewed and had the opportunity to participate in the drafting of this Agreement and, accordingly, that the rule of construction that would resolve ambiguities in favor of non-drafting parties shall not apply to the interpretation of this Agreement. 12.5. Payment of Fees. In the event of a dispute arising under this Agreement, the prevailing party shall be entitled to recover reasonable attorneys fees and costs, provided that if a party prevails only in part the court shall award fees and costs in accordance with the relative success of each party. 12.6. Signature in Counterparts. This Agreement may be signed in counterparts, each of which shall be deemed to be a fully-executed original. 12.7. Signature by Facsimile. An original signature transmitted by facsimile shall be deemed to be original for purposes of this Agreement. 12.8. Assignment. No party to this Agreement shall assign his rights or duties hereunder without the prior written consent of the other parties, except that Buyer may assign its rights and duties to an entity wholly owned by or under common control with Buyer; provided, however. that any such assignment by Buyer shall not relieve Buyer of its obligations hereunder. Any attempted assignment without such prior written consent shall be null and void. 12.9. No Third Party Beneficiaries. Except as otherwise specifically provided in this Agreement, this Agreement is made for the sole benefit of the parties. No other persons shall have any rights or remedies by reason of this Agreement against any of the parties or shall be considered to be third party beneficiaries of this Agreement in any way... 12.10. Bindi ng Effect. This Agreement shall inure to the benefit of the respective heirs, legal representatives and permitted assigns of each party, and shall be binding upon the heirs, legal representatives, successors and assigns of each party. 12.11. Titles and Captions. All article, section and paragraph titles and captions contained in this Agreement are for convenience only and are not deemed a part of the context hereof. . 12.12. Pronouns and Plurals. All pronouns and any variations thereof are deemed to refer to the masculine, feminine, neuter, singular or plural as the identity of the person or persons may require. 12.13. Entire Agreement. This Agreement constitutes the entire agreement between the parties with respect to its subject matter and supersedes all prior agreements and understandings. [Remainder of page intentionally left blank] qJI (Y 160644 above. IN WITNESS WHEREOF, the parties have executed this Agreement on the date first written THE BOLAND GROUP III, LLC . %r Jim Boland, Matij -ing Member By: NAprof led docs\B0262\1\TD8\Asset Purchase Agreement.v4.doc ( 160644 ) JOHNNY'S AT JORDANS, INC. John Furst, President John Furst, Individually Neal Solomon, Individually ESCROW AGENT (for purposes ot5sxtion 11 FL By: Peter R. Spirgel, Esquire, Authorized Representative 4d17 160644 above. IN WITNESS WHEREOF, the parties have executed this Agreement on the date first written THE BOLAND GROUP III, LLC Jim Boland, Managing Member JOHNNY'S AT J,ORDANS, INC. B/ Jotkr Fur , President Jol Furst ,Zdividually Neal Soon, Individuate; ESCROW AGENT (for purposes of Section 11): FLASTER/GREENBERG P.C. By: NAprofiled docAB0262\1\TDS\Asset Purchase Agreement.v4.doc ( 160644 ) Peter R. Spirgel, Esquire, Authorized Representative 4ji5 160644 SCHEDULE 1.1 The Assets 1 Avtec air system with internal fresh air make up 1 Brown walk in refrigerator 20.2x9.6x8.8 with diamond aluminum floor and outdoor condensing unit 1 Brown trash cooler 9.8x5.1 Ox8.8 with reinforced floor and diamond aluminum wainscoting 1 Eagle mop sink 1 Salvajor scrap collector with preflushing and collecting system 1 Champion conveyor style dishwasher model #R3500 with expanded vent hood Assorted Eagle custom manufactured clean and dirty dishwashing tables 5 handsinks as required by the Reading board of health 1 three compartment warewashing sink with t&s faucet 1 two compartment vegetable prep sink 1 Montague gas heavy duty range in prep area 2 Star max gas stock pot ranges in prep area 3 Pitco fryolators Model sgl4s 2 star manufacturing ultramax throttling gas griddles with Eagle stands 1 Holman gcs3 conveyor toaster with stand 1 Montague gas fired radiant style underbroiler 2 Montague gas duty ranges, 1 with tiered open tops models #136-5a 1 36" Montague gas 136 Salamander broiler 2 Amana rfs, 1000watt microwave ovens 4JI1 160644 I Hoshizaki Icemaker with 1300 lb capacity and spec-bar 2000 drop in ice chest, with water filter unit 1 Eagle bzctl 8-7 Ice bin 1 true tssu-27-12 sandwich unit 4 Eliason doors SCP3-PR80x96 6 Dormont 1675-kit disconnect kits 1 Randell custom multibase refrigeration unit with custom overshelf and worktop 1 Randell 9645k-7m salad top 1 Randell 9045k-7m salad top 1 Convection oven (model to follow) I Hobart A-200 mixer 13 bar stools 58 table bases Assorted Eagle custom made counters, shelving and stands Assorted booths and chairs and table tops to seat 165 people manufactured by Jays 1 Custom built counter 1 Positouch computerized point of sale system with two order printers, 4 consoles, complete back office equipment, credit card equipped 1 office safe 1 Freedom system security system with nine cameras (leased) - [Buyer to assume lease] 3 wait stations, all stainless custom built, 1 including three compartment ice cream freezer and fountain 1 6x6 locker system for a total of 36 lockers qj1?V 160644 BILL OF SALE AND ASSIGNMENT AGREEMENT This BILL OF SALE AND ASSIGNMENT AGREEMENT is made effective the 23rd day of August 2005, by Johnny's at Jordans, Inc., a Massachusetts corporation (the "Seller"). Backeround By an Asset Purchase Agreement dated August 12, 2005 by and between The Boland Group III, L.L.C., a Massachusetts limited liability company (the "Buyer") and Seller, and certain other parties thereto (the "Asset Purchase Agreement"), the Seller agreed to convey to the Buyer certain assets owned by the Seller and used in the restaurant business conducted by Seller at 50 Walker's Brook Drive, Reading, MA 01867 ("the Business"), for the consideration specified in the As Purchase Agreement. In accordance with the Asset Purchase Agreement; the Seller desires to effectuate such conveyance. . NOW, THEREFORE, in consideration of the premises and the mutual covenants herein contained, the parties hereto, each intending to be legally bound hereby, do hereby agree as follows: 1. Definitions. Any term capitalized herein, but not defined herein, shall have the definition provided to such term under the Asset Purchase Agreement. 2. Transfer of Title. In consideration of the payment of the Purchase Price under the Asset Purchase Agreement, Seller hereby irrevocably sells, assigns, transfers and conveys to Buyer all of Seller's right, title and interest in and to the Assets. 3. Incorporation of Asset Purchase Agreement. The terms of the Asset Purchase Agreement are hereby incorporated herein by reference as if set forth at length herein. In the event of any conflict or inconsistency between the terms of this Agreement and the Asset Purchase Agreement, the terms of the Asset Purchase Agreement shall be controlling to resolve such conflict or inconsistency. 4. Further Assurances. If Buyer shall reasonably determine that any further assignments, conveyances or assurances are necessary to vest, perfect or confirm of record in Buyer the title to any of the Assets, Seller (or its successor) shall execute and deliver any and all proper deeds or assignments, and do all things necessary or proper to vest, perfect or confirm in Buyer title to such Assets, with the cost of preparing, filing and recording any such instruments to be bonne by Buyer. 5. Governing Law. This Bill of Sale and Assignment Agreement shall be governed by and construed in accordance with the internal laws of Massachusetts, without giving effect to the principles of conflicts of laws. NdBy IN WITNESS WHEREOF, the Seller has caused this Bill of Sale and Assignment Agreement to be executed by its duly authorized officer, effective on the day and year first above written. SELLER: JOHNNY'S AT JORDANS, INC. By: John Furst, P esident NAprofled docs\B0262\1\TD8\Bi11 of Sale.doc (160612 ) 2 -02 47 Op qj D'r 160612 Cato Asset Finance LEASE LINE SCHEDULE NO. 1 LESSOR: Citizens Leasing Corporation, d/bla CITIZENS ASSET FINANCE a Rhode Island corporation ("Lessor") ADDRESS: One Citizens Plaza Providence, RI 02903 LESSEE: . THE BOLAND GROUP III, L.L.C. a Massachusetts limited liability company ("Lessee") ADDRESS: 35 Magnolia Avenue Gloucester, MA 01930 1. Lessor and Lessee have entered into a Master Equipment Lease Agreement dated as of August 15, 2005, including this Lease Line Schedule, along with any and all Individual Leasing Records ("Leasing Records") which may now or hereafter be attached hereto (collectively, the "Lease"), pursuant to which Lessor and Lessee have agreed to lease the equipment generally described as follows (the "Equipment"): Restaurant furniture, fixtures, equipment, leaseholds and related soft costs The Equipment actually included on the Leasing Records will be subject to review and approval by Lessor at the time the Equipment is specifically identified by Lessee. 2. ACQUISITION COST: The aggregate Acquisition Cost of the Equipment under all Leasing Records shall not exceed $1,200,000.00, and the Equipment shall not be delivered and accepted by Lessee after the date which is five (5) months from the date of this Lease Line Schedule (the "Delivery Date"), in either case unless Lessor otherwise agrees in writing. Lessor shall have no obligation to acquire and lease any of the Equipment to Lessee if an event of default under the Lease has occurred and is continuing, or if Lessor shall determine, in its sole discretion and in good faith, that there has been a material adverse change in the financial condition of Lessee since the date of this Lease Line Schedule. 3. REAFFIRMATION OF REPRESENTATIONS AND WARRANTIES: Lessee reaffirms all of its representations, warranties and covenants set forth in the Lease, all of the terms and provisions of which are incorporated herein by reference, as of the date hereof. . 4. LOCATION OF EQUIPMENT: The Equipment will be located at the location, or if mobile Equipment used in the geographic areas, specified in the Leasing Records attached hereto. 5. RENT: Rent will be expressed as a percentage of the Acquisition Cost of the Equipment, and will be set forth in the Leasing Records consistent with the lease rate factors set forth in Lessor's proposal letter to Lessee, including adjustment for any change in Lessor's cost of funds. 6. ADDITIONAL PAYMENTS: Lessee agrees to pay Lessor the Progress Payments Service Charge for amounts advanced by the Lessor to the supplier of the Equipment as defined in that certain Progress Payments Rider by and between the Lessor and the Lessee, until the final Acceptance Certificate relating to the Individual Leasing Record, which sets forth the Lease Term Commencement Date, is executed. Nothing in the Lease shall be construed to require Lessee to pay interim rent prior to the execution of said final Acceptance Certificate so long as Lessee is paying Lessor the Progress Payments Service Charge. TERM OF LEASE: The term for which the Equipment shall be leased shall be specified in the Leasing Record and will be determined by Lessor in its reasonable discretion, but in no event shall the lease term exceed 84 months. 8. For purposes of this Lease Line Schedule and Individual Leasing Records under this Lease Line Schedule only, and without affecting any Lease Line Schedules and Individual Leasing Records which are executed subsequent to the date of this Lease Line Schedule, the Master Lease Agreement is hereby amended as follows: (a) The first paragraph of Section 7 after the title "Ownership" is deleted in its entirety. (b) The first sentence of the second paragraph of Section 7 of the Master Lease Agreement is deleted in its entirety, and the second sentence of the second paragraph of Section 7 of the Master Lease Agreement is hereby amended to read in its entirety as follows: "The parties hereto hereby agree that in order to secure the prompt payment and performance as and when due of all of Lessee's obligations (both now existing and hereafter arising) hereunder and under each such Lease Line Schedule and Individual Leasing Records under this Lease Line Schedule, Lessee hereby grants to Lessor a first-priority security interest in the following (whether now existing or hereafter arising): the Equipment leased pursuant to each Lease Line Schedule and Individual Leasing Records under this Lease Line Schedule together with all replacements, repairs, substitutions, additions, accessions and accessories thereto, any deposit accounts or security deposits related thereto, and to the extent not listed above as original collateral, proceeds and products of the foregoing, including the proceeds of all insurance policies, with respect to the Equipment." (c) The second sentence of Section 10 of the Master Lease Agreement is hereby amended to read in its entirety as follows: r. "All additions and improvements of whatsoever kind or nature made to the Equipment shall be made at Lessee's cost and expense and when made become subject to the security interest granted pursuant to Section 7 hereof, and further subject to the terms and conditions of this Lease." (d) Subsection (b) of Section 12 of the Master Lease Agreement is hereby amended to read in its entirety as follows: "(b) replace such Equipment with like equipment having a market value at least equal to the market value of such Equipment immediately prior to such loss, theft, damage or destruction, and in good repair, condition and working order, and furnish to Lessor all necessary documents granting Lessor a security interest in the replacement Equipment unencumbered by any other lien or security interest, which replacement Equipment shall thereupon become "Equipment" hereunder and be subject to the terms and conditions of this Lease; or" (e) The second paragraph of Section 14 of the Master Lease Agreement is hereby deleted in its entirety. (f) The first sentence of Section 17 of the Master Lease Agreement is hereby amended to read in its entirety as follows: "Lessor may, at any time, with or without notice to Lessee, mortgage, grant a security interest in, or otherwise transfer, sell or assign this Lease or any security interest in the Equipment or any rentals or other amounts due or to become due hereunder." (g) Clause (n) of Section 18 of the Master Lease Agreement is hereby amended to read in its entirety as follows: "(n) if the condition of Lessee's affairs shall change so as in the reasonable opinion of Lessor to impair Lessor's security interest in the Equipment or increase Lessor's credit risk;" (h) The second sentence of Section 19(b) of the Master Lease Agreement is hereby amended to read in its entirety as follows: "(b) Lessor may retain the Equipment in partial satisfaction of the Lessee's obligations, with Lessee remaining liable for any deficiency:" (i) The last sentence of Subsection (d) of Section 19 of the Master Lease Agreement is hereby amended to read in its entirety as follows: "The Lessor shall remit to the Lessee the amount by which the net proceeds of the disposition of the Equipment (after deduction for Lessor's costs and expenses associated with the sale, contemplated by subsection (e) below) exceed the Stipulated Loss Value of such items." (j) The first sentence of Section 25 of the Master Lease Agreement is hereby amended to read in its entirety as follows: "Lessor and Lessee each hereby agrees to execute, deliver, and file or record at Lessee's expense such further instruments, certificates and other documents and to do such further acts and things as may be reasonably requested by the other in order to assure to such other the rights conferred or intended to be conferred by this Lease or to protect Lessor's first-priority security interest in the Equipment." (k) Section 29 is added to the Master Lease Agreement to read in its entirety as follows: 29. TERMINATION AND PREPAYMENT "No Lease may be prepaid, except in its entirety and all voluntary prepayments shall include all late charges and accrued interest and will be subject to a prepayment penalty calculated as of the date of voluntary prepayment and expressed as a percentage of the outstanding lease balance on the date of such prepayment equal to three percent (3%) during the first year of the lease term, two percent (2%) during the second year, one percent (1%) during the third year and zero percent (0%) thereafter." (1) The first sentence of the penultimate paragraph is hereby amended to read in its entirety as follows: "This Lease consists of twenty-nine sections, and the terms and provisions of any Lease Line Schedule, Acceptance Certificate, Individual Leasing Record, Rider, Exhibit, Amendment or other document now or hereafter attached hereto and made a part hereof." Except as amended above (which amendments are effective only for this Lease Line Schedule and Individual Leasing Records under this Lease Line Schedule), the terms and conditions of the Master Lease Agreement remain in full force and effect and are hereby ratified and affirmed. IN WITNESS WHEREOF, the parties hereto have caused this Lease Line Schedule to be duly executed by their respective officers thereunto duly authorized. Dated: August 15, 2005 By execution hereof, the undersigned certifies that he has read, accepted and duly executed this Lease Line Schedule to the Master Equipment Lease Agreement on behalf of the Lessee. LESSOR: Citizens Leasing Corporation, d/b/a CITIZENS ASSET FINANCE By: Title: LEASE LINE SCH (FPO) CLG156 (12 MO) (REV 7105) LESSEE: L.L.C . THE BO D GR JO~;,il By: ( Title: --1?U1fV j`a'i ,►""7 Ndgb ti r IN WITNESS WHEREOF, the parties hereto have caused this Lease Line Schedule to be duly executed by their respective officers thereunto duly authorized. Dated: August 15, 2005 LESSOR: Citizens Leasing Corporation, d/b/a CITIZENS ASSET FINANCE By: Title: / n~✓Y v LEASE LINE SCH (FPO) CLC-156 (12 MO) (REV 7105) By execution hereof, the undersigned certifies that tie has read, accepted and duly executed this Lease Line Schedule to the Master Equipment Lease Agreement on behalf of the Lessee. LESSEE: THE BOLAND GROUP III, L.L.C. By: I r rV k w Title: A- - 4d I? I SCHEDULE A EQUIPMENT Final Schedule A [x] Partial Schedule A Page 1 of 3 LESSOR: Citizens Leasing Corporation, d/b/a LESSEE: THE BOLAND GROUP III, L.L.C. CITIZENS ASSET FINANCE a Rhode Island corporation a Massachusetts limited liability company ("Lessor") ("Lessee") ADDRESS: One Citizens Plaza ADDRESS: 35 Magnolia Avenue Providence, RI 02903 Gloucester, MA 01930 Attached to and made a part of the following documents: Acceptance Certificate and related documents. Product No., Manufacturer, Description Qtv. and Serial No. Ecuioment Location 1 Avtec air system with internal fresh air make up 50 Walker's Brook Drive Reading, MA 01867 1 Brown walk in refrigerator 20.2x9.6x8.8 with diamond aluminum floor and outdoor condensing unit 1 Brown trash cooler 9.86.10x8.8 with reinforced floor and diamond aluminum wainscoting 1 Eagle mop sink 1 Salvajor scrap collector with preflushing and collecting system 1 Champion conveyor style dishwasher model #R3500 with expanded vent hood Assorted Eagle custom manufactured clean and dirty dishwashing tables 5 handsinks as required by the Reading board of health 1 three compartment warewashing sink with t&s faucet 1 two compartment vegetable prep sink 1 Montague gas heavy duty range in prep area 1 Star max gas stock pot ranges in prep area 3 Pitco fryolators Model sg14s 2 star manufacturing ultramax throttling gas griddles with Eagle stands 1 Holman gcs3 conveyor toaster with stand 1 Montague gas fired radiant style underbroiler 2 Montague gas duty ranges, 1 with tiered open tops models #136-5a 1 36" Montague gas 136 Salamander broiler 2 Amana rfs, 1000watt microwave ovens 1 Hoshizaki Icemaker with 1300 lb capacity and spec-bar 2000 drop in ice chest, with water filter unit SCHEDULE A EQUIPMENT S:\DOCTEMPL\CUSTOMERS\THE DOLAND GROUP III, L.L.C. - LS\SCI IEDULE I\SCIiEDULE A CLC-025.DOC 4 ~ 64 LESSOR: Citizens Leasing Corporation, d/b/a CITIZENS ASSET FINANCE a Rhode Island corporation company ("Lessor") ADDRESS: One Citizens Plaza Providence, RI 02903 [ ] Final Schedule A [x] Partial Schedule A Page 2 of 3 LESSEE: THE BOLAND GROUP 111, L.L.C. a Massachusetts limited liability ("Lessee") ADDRESS: 35 Magnolia Avenue Gloucester, MA 01930 Attached to and made a part of the following documents: Acceptance Certificate and related documents. Product No., Manufacturer, Description Qty and Serial No. EOUIDment Location 1 1 4 Eagle bzct18-7 Ice bin true tssu-27-12 sandwich unit Eliason doors SCP3-PR8Ox96 50 Walker's Brook Drive Reading, MA 01867 6 1 1 1 1 1 13 58 1 1 1 1 3 1 Dormont 1675-kit disconnect kits Randall custom multibase refrigeration unit with custom overshelf and worktop Randell 9645k-7m salad top Randell 9045k-7m salad top Convection oven Hobart A-200 mixer bar stools table bases Assorted Eagle custom made counters, shelving and stands Assorted booths and chairs and table tops to seat 165 people manufactured by Jays Custom built counter Positouch computerized point of sale system with two order printers, 4 consoles, complete back office equipment, credit card equipped office safe Freedom system security system with nine cameras (leased) - [Buyer to assume lease] wait stations, all stainless custom built, 1 including three compartment ice cream freezer and fountain 6x6 locker system for a total of 36 lockers SCHEDULE A EQUIPMENT [ ] Final Schedule A S:\DOCTEMPL\CUSTOTdERS\THE IIOLAND GROUP M. L.L.C. - LS\SC}IE-DULE i\SCHEDULE A CLC-025.DOC qj LESSOR: Citizens Leasing Corporation, d/b/a CITIZENS ASSET FINANCE a Rhode Island corporation company ("Lessor") ADDRESS: One Citizens Plaza Providence, RI 02903 [x] Partial Schedule A Page 3 of 3 LESSEE: THE BOLAND GROUP III, L.L.C. a Massachusetts limited liability ("Lessee") ADDRESS: 35 Magnolia Avenue Gloucester. MA 01930 Attached to and made a part of the following documents: Acceptance Certificate and related documents. Product No., Manufacturer, Description Qty. and Serial No. Eauioment Location 1 office desk system 50 Walker's Brook Drive Reading, MA 01867 1 xmsr radio system - [Buyer to assume Service Agreement] Above equipment purchased from: Johnny's at Jordans, Inc. LESSOR: Citizens Leasing Corporation, d/b/a CITIZENS ASSET FINANCE By: Title: SCHEDULE A CLC-025 (REV 7105) LESSEE: THE BOL`AND-I6ROUP III, J By: ~u1 / ! ~i`I/~lC lades Title: / / ",'Art - S:\DOCTEMPL\CUSTOATERS\'n IE DOLAND GROUP 111. L.L.C. • LS\.SCHEDULE I\SCI EDULE A CLC-025.DOC L(j,9a 1 ' LESSOR: Citizens Leasing Corporation, d/b/a CITIZENS ASSET FINANCE a Rhode Island corporation company ("Lessor") ADDRESS: One Citizens Plaza Providence, RI 02903 fx] Partial Schedule A Page 3 of 3 LESSEE: THE BOLAND GROUP III, L.L.C. a Massachusetts limited liability ("Lessee") ADDRESS: 35 Magnolia Avenue Gloucester, MA 01930 . Attached to and made a part of the following documents: Acceptance Certificate and related documents. Product No., Manufacturer, Description Qty. and Serial No. Ecuinment Location 1 office desk system 50 Walker's Brook Drive Reading, MA 01867 1 xmsr radio system - [Buyer to assume Service Agreement] Above equipment purchased from: Johnny's at Jordans, Inc. LESSOR: Citizens Leasing Corporation, d/b/a CITIZENS ASSET FINANCE By: Title: 'U/V, CI L/~~ SCHEDULE A CLC-025 (REV T/05) LESSEE: THE BOLANDGRROUP III,, . By: (111 t Title: S:\DOCTEMPL\CUSTomrRS\THE DOLAND CROUP 111, L.L.C. -MSCHEDULE 1\SC11EDULE A CLC-025.DOC 4419 1 Yet citizens Asset Finance MASTER EQUIPMENT LEASE AGREEMENT Customer No. 2619 Date: August 15, 2005 LESSOR: Citizens Leasing Corporation, d/b/a LESSEE: THE BOLAND GROUP III, L.L.C. CITIZENS ASSET FINANCE a Rhode Island corporation a Massachusetts limited liability company ("Lessor") ("Lessee") ADDRESS: One Citizens Plaza ADDRESS: 35 Magnolia Avenue Providence, RI 02903 Gloucester, MA 01930 In consideration of the mutual covenants hereinafter set forth, Lessor and Lessee hereby agree as follows: 1. LEASE. Lessor hereby leases to Lessee and Lessee hereby leases from Lessor the items of equipment and other personal property and all related software, embedded therein or otherwise, (hereinafter, together with all replacements, repairs, substitutions, additions, accessions and accessories therefor and/or thereto, called the "Equipment") described in the lease schedule(s) or lease line schedule (hereinafter individually called a "Schedule" and collectively called "Schedules") now,or hereafter from time to time executed by Lessor and Lessee and made a part hereof, all upon the terms and conditions hereinafter set forth as supplemented with respect to each item of Equipment by the terms and conditions set forth in the Schedule and/or individual leasing record (hereinafter called an "Individual Leasing Record") applicable thereto and in any rider relating hereto or thereto. As used herein, unless the context indicates otherwise, "Lease" shall mean this Master Equipment Lease Agreement and all Schedules, Individual Leasing Records, exhibits, amendments, riders, acceptance certificates and other documents now or hereafter attached hereto and made a part hereof. Notwithstanding anything to the contrary expressed or implied in this Lease, the terms and conditions of this Lease shall be construed and interpreted as to each Schedule as if a separate but identical lease shall have been executed between the parties with regard to the Equipment on such Schedule. The Equipment is to be delivered and installed at Lessee's expense at the location specified on the applicable Schedule or Individual Leasing Record, as applicable. The Equipment shall be deemed to have been accepted by Lessee for all purposes under this Lease upon Lessor's receipt of an acceptance certificate with respect to such Equipment (an "Acceptance Certificate"), executed by Lessee after receipt of all other documentation required by Lessor with respect to such Equipment. Lessor shall not be liable or responsible for any failure or delay in the delivery of the Equipment to Lessee for whatever reason. 2. TERM AND RENT. The lease term of each item of Equipment shall commence on the Lease Term Commencement Date set forth in the Acceptance Certificate with respect to such item and shall continue for the number of months, and any proration thereof, specified in the applicable Lease Schedule or Individual Leasing Record, as applicable. Rental payments shall be in the amounts and shall be due and payable as set forth in the applicable Lease Schedule or Individual Leasing Record. Lessee shall, in addition, pay interim rent to Lessor on a pro-rata basis from the Acceptance Date set forth in the applicable Acceptance Certificate relating to such item to the Lease Term Commencement Date, to be paid on such Lease Term Commencement Date. All payments to be made to Lessor shall be payable at the address of Lessor set forth above or at such other place as Lessor or its assigns may from time to time designate in writing. Any payment received from Lessee may be applied by Lessor at any time against any obligation due and owing by Lessee under this Lease, in Lessor's sole discretion, notwithstanding any statement appearing on or referred to in any remittance from Lessee or any prior application of such payment. ' 3. EQUIPMENT DELIVERY; LESSEE'S RIGHTS. Lessee shall at its sole discretion select the type, quantity and supplier of each item of Equipment. Lessee acknowledges that it has used its own judgment in making said selections and expressly disclaims any reliance upon any statements or representations made by Lessor. For so long as no Event of Default has occurred and is continuing hereunder, Lessee shall be the beneficiary of, and shall be entitled to, all rights under any applicable manufacturer's or vendor's warranties with respect to the Equipment, to the extent permitted by law. If the Equipment is not delivered, is not properly installed, does not operate as warranted, becomes obsolete, or is unsatisfactory for any reason whatsoever, Lessee shall make all claims on account thereof solely against the manufacturer or supplier and not against Lessor, and Lessee shall nevertheless pay all rentals and other sums payable hereunder. Lessee acknowledges that neither the manufacturer or supplier of the Equipment, nor any sales representative or agent thereof, is an agent of Lessor, and no agreement or representation as to the Equipment or any other matter by any such sales representative or agent of the manufacturer or supplier shall in any way affect Lessee's obligations hereunder. In the event that no Equipment is delivered to the Lessee on or before the Delivery Date, if applicable, set forth in the Schedule relating to said Equipment, Lessor at Lessor's option shall have the right to terminate this Lease and all of Lessor's obligations hereunder upon written notice to Lessee. 4. DISCLAIMER OF LESSOR WARRANTIES. LESSEE ACKNOWLEDGES THAT THE EQUIPMENT TO BE LEASED HEREUNDER WILL BE OF A TYPE, DESIGN, SIZE, CAPACITY AND MANUFACTURE SELECTED BY LESSEE; THAT LESSOR IS NOT A MANUFACTURER OF, OR DEALER IN, THE EQUIPMENT; THAT NEITHER THE VENDOR, THE MANUFACTURER NOR ANY AGENT THEREOF IS AN AGENT OF LESSOR; THAT LESSOR HAS NOT, WILL NOT, AND HAS NO OBLIGATION TO, INSPECT THE EQUIPMENT PRIOR TO DELIVERY TO LESSEE; THAT LESSOR IS NOT RESPONSIBLE FOR REPAIRS, SERVICE OR DEFECTS IN EQUIPMENT OR OPERATION THEREOF; AND THAT LESSOR HAS NOT MADE AND WILL NOT MAKE ANY REPRESENTATION. WARRANTY OR COVENANT. EXPRESS OR IMPLIED. OF ANY KIND OR AS TO ANY MATTER WHATSOEVER ON WHICH LESSEE MAY RELY. INCLUDING. WITHOUT LIMITATION THE MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, COMPLIANCE WITH LAWS,, GOVERNMENTAL REGULATIONS OR RULES. ORDERS SPECIFICATIONS OR CONTRACT. CONDITION. TITLE. QUALITY OF THE. Page 1 of 7 J Q71 Lf . I - MATERIALS OR WORKMANSHIP. DESIGN. DURABILITY OR SUITABILITY FOR LESSEE'S PURPOSES OF THE EQUIPMENT IN ANY RESPECT. OR ANY PATENT INFRINGEMENT. OR LATENT OR PATENT DEFECTS. LESSOR SHALL NOT BE LIABLE TO LESSEE FOR ANY LIABILITY, LOSS OR DAMAGE CAUSED OR ALLEGED TO BE CAUSED DIRECTLY OR INDIRECTLY BY THE EQUIPMENT OR ANY INADEQUACY THEREOF OR DEFICIENCY OR DEFECT THEREIN OR BY ANY INCIDENT WHATSOEVER IN CONNECTION THEREWITH, AND LESSEE HEREBY ACKNOWLEDGES THE FOREGOING DISCLAIMER BY LESSOR. 5. LESSEE'S OBLIGATIONS UNCONDITIONAL. THIS IS A NET LEASE, AND ALL RENT AND ALL OTHER SUMS PAYABLE BY LESSEE HEREUNDER SHALL BE PAID UNCONDITIONALLY WHEN DUE, WITHOUT ABATEMENT, DEDUCTION, COUNTERCLAIM OR SETOFF OF ANY NATURE, INCLUDING WITHOUT LIMITATION ANY COUNTERCLAIM OR SETOFF ARISING OUT OF ANY PRESENT OR FUTURE CLAIM LESSEE MAY HAVE AGAINST LESSOR, OR ANY ASSIGNEE OF LESSOR, OR THE MANUFACTURER OR SUPPLIER OF THE EQUIPMENT, OR ANY OTHER PARTY. In no event, except as otherwise expressly provided herein, shall this Lease terminate or shall any of Lessee's obligations be affected by reason of any defect in or damage to or loss or destruction of all or any part of the Equipment, from any cause whatsoever, or any interference with Lessee's use of the Equipment by any person or for any other cause whatsoever. Each rent or other payment made by Lessee hereunder shall be final and Lessee will not seek to recover all or any part of such payment from Lessor for any reason whatsoever. 6. USE AND LOCATION: ADDITIONAL REPRESENTATIONS, WARRANTIES AND COVENANTS. Lessee shall use the Equipment in a careful and proper manner and in compliance with all laws, ordinances, regulations, applicable manufacturer's manuals and insurance policy conditions in any way relating to the possession, use or maintenance of the Equipment, and will cause the Equipment to be operated by duly qualified personnel only and for business purposes only. Unless the Equipment is of a type normally used at more than one location (such as vehicular equipment, construction machinery or the like), Lessee shall not remove the Equipment from the location designated in the applicable Schedule and/or Individual Leasing Record without the prior written consent of Lessor. If an item of Equipment is of a type normally used at more than one location, Lessee shall not use the Equipment outside of the geographic area designated in the applicable Schedule and/or Individual Leasing Record without the prior written approval of Lessor. Lessee represents and warrants to and covenants with Lessor that (i) Lessee has not and is not now engaged in, and shall not, during any time that any of Lessee's obligations hereunder are outstanding, engage in any conduct or activity, including but not necessarily limited to, a pattern of racketeering activity that would subject any of Lessee's assets to forfeiture or seizure and (ii) Lessee will give prompt written notice to the Lessor of any proceedings instituted against the Lessee by or in any federal or state court or before any commission or other regulatory body, whether federal, state or local, which, if adversely determined, would have an adverse effect upon the Lessee's business, operations, properties, assets or condition, financial or otherwise. Lessee further represents and warrants to and covenants with Lessor that (i) Lessee is the type of entity identified above, and is duly organized, validly existing and in good standing under the laws of the jurisdiction specified below the signature of Lessee, (it) the true and correct organizational number assigned to Lessee by such jurisdiction is as specified below the signature of the Lessee, of if Lessee is a general partnership, Lessee's single place of business, or if it has multiple places of business, its chief executive office is specified below the signature of Lessee, (iii) Lessee's exact legal name is as set forth in the preamble of this Agreement, and (iv) Lessee will provide written notice to Lessor not less than thirty (30) days prior to any change in the name of Lessee, the jurisdiction of organization/incorporation of Lessee (including any such change occurring through a reincorporation transaction) or the address of the chief executive office of Lessee. 7. OWNERSHIP. The Equipment is, and shall at all times be and remain, the sole and exclusive property of Lessor, and Lessee shall have no right, title or interest therein or thereto except as expressly set forth in this Lease. Plates, labels or other markings stating that the Equipment is owned by Lessor shall be affixed to or placed on the Equipment by Lessor or, at Lessor's request or if required by law, by Lessee at Lessee's expense, and Lessee shall keep the same in a prominent position thereon: It is the express intention of the Lessor and the Lessee that (a) each Schedule constitutes a "true lease" and a "finance lease" as such terms are defined in UCC - Article 2A and not a sale or retention of a security interest; and (b) title to the Equipment shall at all times remain in Lessor, and Lessee shall acquire no ownership, property, rights, equity, or other interest other than a leasehold interest, solely as Lessee subject to the terms and conditions hereof. If, notwithstanding the express intent of the parties, a court of competent jurisdiction determines that any Schedule is not a true lease, but is rather a sale and extension of credit, a lease intended for security, a loan secured by the Equipment specified in the Schedule, or other similar arrangement, the parties agree that in such event: (a) in order to secure the prompt payment and performance as and when due of all of Lessee's obligations (both now existing and hereafter arising) hereunder and under each such Schedule, Lessee shall be deemed to have granted, and it hereby grants, to Lessor a first-priority security interest in the following (whether now existing or hereafter arising): the Equipment leased pursuant to each Schedule together with all replacements, repairs, substitutions, additions, accessions and accessories thereto, any deposit accounts or security deposits related thereto, and to the extent not listed above as original collateral, proceeds and products of the foregoing, including the proceeds of all insurance policies, with respect to the Equipment. In addition to all of the other rights and remedies available to Lessor hereunder, upon the occurrence of an Event of Default, Lessor shall have all of the rights and remedies of a first-priority secured party under the UCC. All references in this Lease to the "UCC" shall mean the Uniform Commercial Code as may from time to time be in effect in any applicable jurisdiction, including the jurisdiction in which the Lessee is organized (if a "registered organization" as defined in the UCC) or the jurisdiction in which Lessee's chief executive office is located (if Lessee is not a "registered organization") and the jurisdiction where the Equipment is located. Lessee hereby authorizes Lessor to prepare and file in all applicable jurisdictions, UCC financing statements with respect to the Equipment, including any amendments to same, without Lessee's authentication, to the extent permitted by applicable law. Lessee also ratifies and reaffirms any UCC financing statements with respect to the Equipment filed by Lessor prior to the execution of this Lease. Lessee agrees to pay or reimburse Lessor for any filing, recording or stamp fees or taxes in connection with any such filings. 8. PERSONAL PROPERTY. The Equipment is, and shall at all times be and remain, personal property notwithstanding that it or any part thereof may now be, or hereafter become, in any manner affixed or attached to, or embedded in, real property or any building thereon. The Equipment is removable from and is not an integral part of the premises at which it is located. Lessee agrees that it will furnish and record, at its own expense, such owners', mortgagees', landlords' or others' disclaimers, waivers, or consents as may be necessary or reasonably requested by Lessor in order to give full effect to the intent and provisions of the preceding sentence. Page 2 of 7 13 9. MAINTENANCE AND REPAIRS. Lessee, at its own cost and expense, shall keep the Equipment in good repair, condition and working order and shall furnish any and all parts, mechanisms and devices required for such purpose. All such parts, mechanisms and devices affixed to any Equipment shall thereupon become the property of Lessor and subject to the terms and conditions of this Lease. 10. ALTERATIONS. Without the prior written consent of Lessor, Lessee shall not make any alterations, additions or improvements to the Equipment. All additions and improvements of whatsoever kind or nature made to the Equipment shall be made at Lessee's cost and expense and when made become the property of Lessor and subject to the terms and conditions of this Lease. 11. LESSOR'S INSPECTION. Lessor or its agent shall during normal business hours have the right to enter into and upon any premises where any Equipment may be located for the purpose of inspecting such Equipment or observing its use. Lessee shall, whenever requested by Lessor, advise Lessor of the exact location of any and all items of Equipment. 12. LOSS, THEFT AND DAMAGE. Lessee hereby assumes and shall bear the entire risk of loss, theft, damage or destruction of the Equipment from any and every cause whatsoever, whether or not insured. No loss, theft, damage or destruction of the Equipment or any part thereof shall impair any obligation of Lessee under this Lease which shall continue in full force and effect except as hereinafter provided in this paragraph 12. In the event of loss, theft, damage or destruction of any kind to any Equipment, Lessee shall promptly notify Lessor thereof and, at Lessor's option and request, Lessee shall forthwith: (a) place such Equipment in good repair, condition and working order; or (b) replace such Equipment with like equipment having a market value at least equal to the market value of such Equipment immediately prior to such loss, theft, damage or destruction, and in good repair, condition and working order, and furnish to Lessor all necessary documents vesting good and marketable title thereto in Lessor unencumbered by any lien or security interest, which replacement Equipment shall thereupon become the property of Lessor and be subject to the terms and conditions of this Lease; or (c) if Lessor determines that such Equipment is lost, stolen, destroyed or damaged beyond repair, pay Lessor therefor in cash all unpaid rentals and other amounts due and owing as of the date of payment by Lessee to Lessor as set forth in this Lease plus an amount equal to the greater of (i) the full replacement value of such item of Equipment or (ii) the net present value of all rental payments then remaining unpaid for the term of the Lease plus the amount of any purchase or renewal option or obligation with respect to such item of Equipment or, if there is no such option or obligation, then the fair market value of the Equipment at the end of such term, as estimated by Lessor in its sole, reasonable discretion, all discounted at the Discount Rate (as herein defined). For purposes of this Lease, the term "Discount Rate" shall mean a rate per annum equal to the 1-year Treasury Constant Maturity Rate (weekly rate) as published in the Selected Interest Rates table of the Federal Reserve statistical release H.15 (519) for the week ending immediately prior to the original Acceptance Date for the subject Equipment. Upon replacement of any such Equipment pursuant to subparagraph (b) above or payment pursuant to subparagraph (c) above, this Lease shall terminate with respect to such Equipment so replaced or paid for and Lessee shall thereupon become entitled to such Equipment AS-IS and WHERE-IS and without warranty, express or implied, with respect to any matter whatsoever. 13. INSURANCE. Lessee shall procure and maintain, upon such terms and with such companies as Lessor may approve, during the entire term of this Lease, at Lessee's expense, (a) Worker's Compensation and Employer's Liability Insurance, in the full statutory amounts provided by law; (b) Comprehensive General Liability Insurance including product/completed operations and contractual liability coverage, with minimum limits of $1,000,000 each occurrence, and Combined Single Limit Body Injury and Property Damage, $1,000,000 aggregate, where applicable; and (c) All Risk Physical Damage Insurance, including earthquake and flood, on each item of Equipment, in an amount not less than the greater of (i) the full replacement value of such item or (ii) the net present value of all rental payments then remaining unpaid for the term of the Lease plus the amount of any purchase or renewal option or obligation with respect to such items or, if there is no such option or obligation, then the fair market value of the Equipment at the end of such term, as estimated by Lessor in its sole, reasonable discretion, discounted at the Discount Rate. Lessor will be included as an additional insured and loss payee as its interest may appear. Such policies shall be endorsed to provide that the coverage afforded to Lessor shall not be rescinded, impaired or invalidated by any act or neglect of Lessee. Lessee agrees to waive Lessee's right and its insurance carrier's rights of subrogation against Lessor for any and all loss or damage. All amounts payable by reason of loss, theft or damage to Equipment shall be payable only to Lessor. Any proceeds of such insurance resulting from loss, theft or damage to Equipment shall be paid to Lessor and applied towards the repair or replacement of such Equipment or towards Lessee's obligations pursuant to subparagraph 12(c) above, depending on whether Lessor elects to have such Equipment repaired or replaced pursuant to paragraph 12(a) or 12(b) hereof or to be paid pursuant to paragraph 12(c) hereof, and any excess shall be paid over to Lessee (provided that no Event of Default hereunder shall have occurred and be continuing). In addition to the foregoing minimum insurance coverage, Lessee shall procure and maintain such other insurance coverages as Lessor may require from time to time during the term of this Lease. All policies shall contain a clause requiring the insurer to furnish Lessor with at least thirty (30) days' prior written notice of any material change, cancellation or non-renewal of coverage. Upon execution of this Lease, Lessee shall furnish Lessor with evidence of property insurance or other evidence satisfactory to Lessor that such insurance coverages are in effect, provided, however, that Lessor shall be under no duty either to ascertain the existence of or to examine such insurance coverage or to advise Lessee in the event such insurance coverage should not comply with the requirements hereof. Lessee hereby irrevocably appoints Lessor as Lessee's attorney-in-fact to file, settle or adjust, and receive payment of claims under any such insurance policy and to endorse Lessee's name on any checks, drafts or other instruments in payment of such claims. Lessee further agrees to give Lessor prompt notice of any damage to, or loss of, the Equipment, or any part thereof. 14. ENCUMBRANCES AND TAXES; TAX ASSUMPTIONS. Lessee shall keep the Equipment free and clear of all levies, liens and encumbrances, and shall pay promptly when due, and shall indemnify and hold Lessor harmless from, all license fees, registration fees, import duties, assessments, charges and taxes (municipal, state, federal or other) which may now or hereafter be imposed upon the ownership, leasing, renting, sale, possession or use of the Equipment (whether the same be assessed to Lessor or Lessee), together with any penalties or interest in connection therewith, excluding, however, all taxes on or measured by Lessor's net income. if any such fee, assessment, duty, charge or tax is, or is to be, assessed or billed to Lessor, Lessee upon the request of Lessor and at the expense of Lessee shall do any and all Page 3 of 7 t~ 1~" things required to be done by Lessor in connection with the levy, assessment, billing and payment thereof. Upon Lessor's request, Lessee shall, on any property tax returns required to be filed with respect to the Equipment, include the property covered by this Lease and any substitutions or additions thereto as property owned by Lessee for purposes of tax assessments, shall cause all billings of such fees, assessments, duties, charges or taxes to be addressed to Lessor in care of Lessee, and shall submit to Lessor written evidence of payment of the same. Alternatively, Lessee shall, at the request of Lessor, forthwith pay Lessor the amount (estimated or otherwise) of any such fees, assessments, duties, charges and taxes, and Lessor shall apply the same to the payment thereof. Lessee acknowledges that with respect to the Equipment, Lessor has assumed the following tax benefits (the "Tax Benefits"): (i) that it will be entitled to cost recovery deductions under Section 168 of the Internal Revenue Code of 1986, as amended (the "Code"), using a two hundred percent (200%) declining balance method of depreciation as set forth in Section 168(b) of the Code for the applicable recovery period for such Equipment under Section 168(c) of the Code as set forth in the Schedule or Individual Leasing Record, as applicable, with respect to the Equipment, and (ii) that Lessor will be taxed throughout the term of the Schedule or Individual Leasing Record, as applicable, at Lessor's federal corporate income tax rate existing on the date of such Schedule or Individual Leasing Record, as applicable (the "Assumed Tax Rate"). If, for any reason whatsoever, there shall be a loss, disallowance, recapture or delay in claiming all or any portion of the Tax Benefits with respect to any of the Equipment, or there shall be included in Lessor's gross income for federal, state or local income tax purposes any amount on account of any addition, modification or improvement to or in respect of any of the Equipment made or paid for by Lessee, or if there shall be a change in the Assumed Tax Rate (any loss, disallowance, recapture, delay, inclusion or change being herein called a "Tax Loss"), then thirty (30) days after written notice to Lessee by Lessor that a Tax Loss has occurred, Lessee shall pay Lessor a lump sum amount which, after deduction of all taxes required to be paid by Lessor with respect to the receipt of such amount, will provide Lessor with an amount necessary to maintain Lessor's after-tax economic yield and overall net after-tax cash flows at least the same level that would have been available if such Tax Loss has not occurred, plus any interest, penalties or additions to tax which may be imposed in connection with such Tax Loss. A Tax Loss shall conclusively be deemed to have occurred if either (a) a deficiency shall have been proposed by the Internal Revenue Service or other taxing authority having jurisdiction, or (b) tax counsel for Lessor has rendered an opinion to Lessor that such Tax Loss has so occurred. The foregoing indemnity shall continue in full force and effect notwithstanding the expiration or termination of the Lease or the Lease Term relating to said Equipment. 15. LESSOR'S PAYMENT. In case of failure of Lessee to procure or maintain such insurance or to pay such fees, assessments, duties, charges and taxes or to keep any item of Equipment free and clear of all levies, liens and encumbrances or in good repair, condition and working order, all as hereinbefore provided, Lessor shall have the right, but not the obligation, without notice to or demand upon Lessee, and without releasing Lessee from any obligation hereinbefore specified, to effect and pay for such insurance or to pay such fees, assessments, duties, charges and taxes or to keep such Equipment in good repair, condition and working order, as the case may be, and to pay, purchase, contest or compromise any encumbrance, charge or lien which in the sole judgment of Lessor appears to affect such Equipment, and in exercising any such right, to incur any liability and expend whatever amounts in its absolute discretion it may deem necessary therefor. All sums so incurred or expended by Lessor shall become due and payable by Lessee upon demand and shall thereafter bear interest at such rate per annum calculated daily as shall equal the floating prime rate of interest designated from time to time by Citizens Bank of Massachusetts as being its so-called "prime rate" of interest plus two percent (2%) per annum, but in no event to exceed the maximum rate allowed by and determined under applicable law. 16. SURRENDER OF EQUIPMENT. Upon the expiration of this Lease at the end of the initial term of this Lease or any renewal term, or earlier termination of this Lease, (as contemplated by Section 12 or Section 19 of this Lease), with respect to any items of Equipment, Lessee shall, at its own risk and expense, unless Lessee shall have at Lessor's request replaced such Equipment or paid Lessor pursuant to paragraph 12(b) or 12(c) hereof, and in the case of a voluntary return of Equipment upon written notice delivered to Lessor not less than 180 days prior to the anticipated return date, return such Equipment to Lessor at such location as Lessor shall designate in writing and in good repair, condition and working order, with the exception only of ordinary wear and tear resulting from proper use at the location(s) permitted hereunder- The risk of loss of the Equipment shall remain with Lessee until the returned Equipment is accepted by Lessor or such other entity to whom the Equipment is returned, and Lessee shall maintain insurance on the Equipment in accordance with Section 13 until such acceptance. Unless and until the Equipment is returned and accepted as herein provided, or otherwise disposed of by written agreement of Lessor and Lessee, at the end of the initial term of this Lease or any renewal term, the term of this Lease with respect to such Equipment shall continue on a month-to-month basis terminable by Lessor or Lessee (provided that the Lessee returns the Equipment in accordance with the terms hereof) upon sixty (60) days advance written notice at a rent per month equal to the highest monthly rent for the Equipment payable during the Lease term. 17. ASSIGNMENT BY LESSOR. Lessor may, at any time, with or without notice to Lessee, mortgage, grant a security interest in, or otherwise transfer, sell or assign this Lease or any Equipment or any rentals or other amounts due or to become due hereunder. Lessee agrees with Lessor and any such assignee (including any assignee to which such rights have been assigned by a prior assignee) that, upon receipt by Lessee from Lessor or such assignee of notice in writing of any such assignment, Lessee will make all further payments due or to become due hereunder directly to such assignee at the address specified in such notice of assignment and will recognize such assignee as the person entitled to exercise all other rights of Lessor hereunder. Lessee further agrees with Lessor and any such assignee that in any action brought by such assignee against Lessee to enforce Lessor's rights hereunder Lessee will not assert against such assignee any breach or default on the part of Lessor hereunder or any other defense, claim or set-off which Lessee may have against Lessor either hereunder or otherwise. No such assignee shall be obligated to perform any obligation, term or condition required to be performed by Lessor hereunder. LESSEE SHALL NOT SELL, ASSIGN, TRANSFER, PLEDGE, GRANT A SECURITY INTEREST IN, HYPOTHECATE, LICENSE OR OTHERWISE DISPOSE OF ANY OF ITS RIGHTS OR OBLIGATIONS UNDER THIS LEASE OR WITH RESPECT TO THE EQUIPMENT OR ENTER INTO ANY SUBLEASE WITH RESPECT TO ANY OF THE EQUIPMENT WITHOUT THE EXPRESS PRIOR WRITTEN CONSENT OF LESSOR. Further, Lessee shall not permit any item of Equipment or any part thereof to be used by anyone other than Lessee or Lessee's employees. 18. DEFAULT. Any of the following events or conditions shall constitute an event of default hereunder: (a) nonpayment of any rental payment or other amount provided for hereunder, including any late charges pursuant to Section 21 hereof, promptly when due, whether by acceleration or otherwise; (b) default by Lessee in the performance of any other obligation, term or condition of this Lease and the continuance of such default for ten (10) days after written notice thereof shall have been given by Lessor to Lessee; (c) default by Lessee in the payment or performance of any other indebtedness or obligation now or hereafter owed by Lessee to Lessor or any parent, subsidiary or affiliated company Page 4 of 7 ~q ~ of Lessor under any other agreement or instrument, which default has not been waived; (d) the issuance of any writ or order of attachment or execution or other legal process against any Equipment which is not discharged or satisfied within ten (10) days; (e) death or judicial declaration of incompetency of Lessee, if an individual; (f) the commencement of any bankruptcy, insolvency, arrangement,. reorganization, receivership, liquidation or other similar proceedings by or against Lessee or the appointment of a trustee, receiver, liquidator or custodian for Lessee or any of its properties of business; (g) the Lessee shall terminate its existence by merger, consolidation, sale of substantially all of its assets, dissolution or otherwise, (h) the making by Lessee of a general assignment or deed of trust for the benefit of creditors; (i) the occurrence of any event or condition described in clause (e), (f), (g) or (h) of this paragraph 18 with respect to any guarantor or any other secondary obligor with respect to this Lease; (j) if any certificate, statement, representation, warranty or audit heretofore or hereafter furnished by or on behalf of Lessee or any guarantor or other secondary obligor with respect to this Lease, proves to have been false in any material respect at the time as of which the facts therein set forth were stated or certified, or to have omitted any substantial contingent or unliquidated liability or claim against Lessee or any such guarantor or other secondary obligor; (k) Lessor shall determine, in its sole discretion and in good faith, that Lessee's ability to make any payment hereunder promptly when due or otherwise comply with the terms of this Lease is impaired; (1) the Equipment shall be abused, substantially damaged or destroyed, or Lessor shall reasonably deem the Equipment to be unsafe or at risk; (m) Lessee shall default in the payment or performance of any of its trade, tax, borrowing or other obligations, except to the extent Lessee is contesting any such obligations in good faith and has established adequate reserves therefor; (n) if the condition of Lessee's affairs shall change so as in the reasonable opinion of Lessor to impair Lessor's title to the Equipment or increase Lessor's credit risk; (o) if the Lessee is a corporation and twenty percent (20%) or more of the then issued and outstanding voting capital stock of Lessee shall be acquired by any person, entity or group who are not such owners on the date of execution of this Lease; or (p) Lessee files a termination statement with respect to any UCC financing statement covering the Equipment in favor of Lessor while any obligations of Lessee to Lessor under this lease remain outstanding and unpaid. 19. REMEDIES ON DEFAULT. (a) Upon the occurrence and during the continuance of any event of default as hereinbefore specified, Lessor shall have the following rights and remedies in addition to any and all other rights and remedies available to it under applicable law: (1) Lessor may declare all rental payments and other amounts then due or thereafter scheduled to become due under this Lease, including without limitation, amounts due under paragraph 22 hereof, to be immediately due and payable, subject, however, to the reduction of all future rental payments to their present value as provided in subparagraph (f) below; and/or (2) Lessor may terminate this Lease with respect to any or all items of Equipment upon written notice to Lessee; and/or (3) Lessor may take possession of any or all items of Equipment, and for such purpose Lessee hereby authorizes Lessor to enter upon any premises where such Equipment is located and remove the same without being guilty of trespass or liable for any damage to the premises caused by such removal; provided, however, if so requested by Lessor, Lessee will assemble any or all items of Equipment designated by Lessor and return the same to Lessor in the manner provided in paragraph 16 hereof. (b) In the event that Lessor takes possession of any or all items of Equipment, Lessee shall, except as hereinafter in this subparagraph (b) provided, remain liable for any and all amounts which then are or may thereafter become due and payable under this Lease, including without limitation any and all future rental payments, whether at maturity or by acceleration as provided in subparagraph (a)(1) above or otherwise. Notwithstanding the express intention of the parties, if a court of competent jurisdiction finds this Lease to be a lease intended for security, or other similar arrangement, Lessor may retain the Equipment in partial satisfaction of the Lessee's obligations, with Lessee remaining liable for any deficiency. Lessor may, in its sole discretion, with respect to any items of repossessed Equipment: (1) hold such Equipment for the account of Lessee who, while it is so held, shall be entitled to regain possession of the same by paying to Lessor all amounts then due and payable under this Lease (including without limitation any and all future rental payments which have previously been declared to be immediately due and payable pursuant to subparagraph (a)(1) above) and by curing all other events of default hereunder; or (2) re-let any or all items of Equipment for such period, at such rental and upon such other terms as Lessor may determine, in which event Lessee shall remain liable for any and all amounts which then are or may thereafter become due and payable under this Lease (including without limitation any and all future rental payments whether or not such payments have previously been declared to be immediately due and payable as aforesaid), but Lessee shall be credited with the amount of any rental payments under the new lease or leases which are allocable to the unexpired portion of the lease terms under this Lease applicable to the items of Equipment so re-let; or (3) sell any or all items of Equipment, at public or private sale, at such price and upon such other terms as Lessor may determine, in which event Lessee shall remain liable for any and all amounts which then are or may thereafter become due and payable under this Lease (excluding, however, any rental payments applicable to such items of Equipment for the period subsequent to such sale whether or not such payments have previously been declared to be immediately due and payable as aforesaid) and shall also be liable to Lessor for any amount by which the Stipulated Loss Value of the items sold as set forth on the Stipulated Loss Schedule attached to the respective Schedule (the "Stipulated Loss Value") exceeds the proceeds of such sale. Any re-letting or sale pursuant to subparagraph (b)(2) or (3) above shall terminate Lessee's right to regain possession pursuant to subparagraph (b)(1) above. (c) If Lessor desires to repossess any or all items of Equipment but is unable to do so for any reason or if Lessee refuses or fails to return any or all items of Equipment as required by Lessor, then, at Lessor's option, such Equipment shall be deemed to be a total loss and Lessee shall pay to Lessor the amounts due pursuant to subparagraph 12(c). (d) No individual right or remedy of Lessor hereunder shall be exclusive of any other right or remedy hereunder or under applicable law, and all such rights and remedies shall be cumulative and in addition to every other right and remedy otherwise available to Lessor. All such rights and remedies of Lessor shall be exercisable with respect to particular items of Equipment without any requirements that they also be exercised with respect to other items of Equipment. Lessor and Lessee agree that all amounts collected by the Lessor hereunder represent Page 5 of 7 q(v l liquidated damages for Lessor's loss of bargain and not a penalty. The Lessor shall not be accountable to the Lessee for any amount by which the proceeds of the disposition of the Equipment exceed the Stipulated Loss Value of such items. (e) Lessee agrees to reimburse Lessor on demand for any and all costs and expenses, including reasonable attorneys' fees, incurred by Lessor in enforcing its rights hereunder following the occurrence of an event of default, including without limitation all costs and expenses of repossessing Equipment and holding, storing, preserving, repairing, insuring, re-letting and selling the same, and all such costs and expenses may be deducted by Lessor in determining the amount of rental payments under the new lease or leases for purposes of subparagraph (b)(2) above or the proceeds of sale for purposes of subparagraph (b)(3) above. Lessor shall have no obligation, subject to the requirements of commercial reasonableness, to clean-up or otherwise prepare the Equipment for sale or re-lease. Lessor may comply with any applicable state or federal law requirements in connection with a sale or re-lease of the Equipment and compliance will not be deemed to have adversely affected the commercial reasonableness of any sale or re-lease of the Equipment. In connection with any sale of the Equipment by Lessor, Lessor may specifically disclaim any warranties of title or the like. Lessee waives any right it may have to require Lessor to pursue any third party or secondary obligor for any of Lessee's obligations hereunder. (f) In the event that Lessor shall declare any future rental payments to be due and payable prior to their scheduled maturity dates as provided in subparagraph (a)(1) above, such payments shall be reduced to their present value determined as of the date of such declaration at the Discount Rate and shall thereafter bear interest at the default rate set forth in paragraph 21 hereof. (g) LESSEE HEREBY WAIVES ANY AND ALL RIGHTS TO NOTICE AND TO A JUDICIAL HEARING WITH RESPECT TO THE REPOSSESSION OF ANY OR ALL ITEMS OF EQUIPMENT BY LESSOR IN THE EVENT OF A DEFAULT HEREUNDER BY LESSEE. 20. WAIVER, ETC. No delay or omission on the part of Lessor in exercising any right hereunder shall operate as a waiver of any such right or of any other right hereunder, and a waiver of any such right on any one occasion shall not be construed as a bar to or waiver of any such right on any future occasion. Any waiver, permit, consent or approval of any kind or character on the part of Lessor of any breach or default under this Lease, or any waiver on the part of Lessor of any provision or condition of this Lease, must be in writing and shall be effective only to the extent specifically set forth in such writing. Acceptance by Lessor of a rental or other payment at a time when Lessee is in default hereunder shall not constitute a waiver of such default or defaults or of Lessor's right to terminate Lessee's rights hereunder pursuant to paragraph 19 hereof. 21. LATE CHARGES. If any rent or other amount payable hereunder shall not be paid within ten (10) days of the date due, Lessee shall pay as an administrative and late charge an amount equal to five percent (5%) of the amount of such overdue payment. In addition, if Lessee fails to pay any part of the rent or other amounts provided for in this Lease within ten (10) days of the date such payment is due, whether by acceleration or otherwise, Lessee shall, on Lessor's demand, pay interest to Lessor at the rate of one and one-half percent (1-1/2%) per month or the maximum rate permitted by law, whichever is less, on such delinquent payment from the due date thereof until the date such rent or other payment is received by Lessor. 22. INDEMNITY. Lessee shall indemnify Lessor against, and hold Lessor harmless from any and all claims, actions, suits, proceedings, costs, expenses, damages and liabilities, including reasonable attorneys' fees, of every kind and nature whatsoever, in any way arising out of, in connection with, or resulting from, this Lease or its enforcement or any item of Equipment, including without limitation the manufacture, selection, delivery, possession, use, operation or return of the Equipment, and any taxes for which Lessee is responsible pursuant to paragraph 14 hereof. Lessee's obligations under this paragraph 22 shall survive expiration or termination of this Lease notwithstanding any other provision herein contained. 23. DEPOSIT OF SECURITY. The amount, if any, which Lessee has deposited with Lessor as security as set forth in any Schedule shall constitute partial security for Lessee's obligations under this Lease. Said amount may, at Lessor's option, be applied at any time in partial satisfaction of any obligation of Lessee which may be in default, but the making of such deposit shall not excuse Lessee from any such obligation and such application of the amount shall only release Lessee from the obligation pro tanto in which event Lessee shall promptly restore the deposit amount to the full amount originally deposited with the Lessor. Any portion of said amount which has not been so applied by Lessor will be returned to Lessee at the termination of this Lease. 24. NOTICES. Service of all notices under this Lease shall be sufficient if delivered or mailed to the party intended to be the recipient thereof at its respective address hereinbefore set forth, or at such other address as such party may designate in writing from time to time. 25. INSTRUMENTS OF FURTHER ASSURANCE. Lessor and Lessee each hereby agrees to execute, deliver, and file or record at Lessee's expense such further instruments, certificates and other documents and to do such further acts and things as may be reasonably requested by the other in order to assure to such other the rights conferred or intended to be conferred by this Lease or to protect Lessor's rights, title and interest in the Equipment. In furtherance of the foregoing, Lessee hereby appoints Lessor as its attorney-in-fact to execute, sign, file and record any lien recordation documents with respect to the Equipment where Lessee fails or refuses to do so after Lessor's written request, and Lessee agrees to pay or reimburse Lessor for any filing, recording or stamp fees or taxes arising from any such filings. 26. FINANCIAL STATEMENTS. Lessee shall annually, within thirty (30) days from the date of filing of Federal Tax Return, furnish to Lessor financial statements of Lessee (including a balance sheet as of the close of such year and income and surplus statements for such year) prepared ona modified cash basis and compiled by Lessee's independent certified public accountants. If requested by Lessor, Lessee shall also provide quarterly financial statements of Lessee similarly prepared for each of the first three quarters of each fiscal year, which shall be management prepared (subject to normal year-end audit adjustments) and furnished to Lessor within forty-five (45) days following the end of the quarter. 27. MISCELLANEOUS. Time is of the essence of this Lease and of each and all of its provisions. Lessor shall be entitled to specific performance of any and all of its rights under this Lease whether or not an adequate remedy at law exists. LESSEE HEREBY WAIVES TRIAL BY JURY AND THE RIGHT TO INTERPOSE ANY COUNTERCLAIM OR OFFSET OF ANY NATURE OR DESCRIPTION IN.ANY LITIGATION BETWEEN LESSEE AND LESSOR WITH RESPECT TO THIS LEASE, THE EQUIPMENT OR THE REPOSSESSION THEREOF. Any action by Lessee against Lessor for any cause of action under this Lease shall be brought within one year after such cause of action first Page 6 of 7 4 % occurs. In the event of any inconsistency between this Lease and any Schedule, Individual Leasing Record or Rider hereto, the latter shall be controlling. This lease shall be governed by and construed according to the laws of the State of Rhode Island. LESSEE AND ANY GUARANTOR OR OTHER PARTY LIABLE FOR PAYMENT OR PERFORMANCE OF THIS LEASE HEREBY CONSENT AND SUBMIT, TO THE EXTENT THEY MAY LAWFULLY DO SO, TO THE JURISDICTION OF THE COURTS OF THE STATE OF RHODE ISLAND AND THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF RHODE ISLAND, AS WELL AS TO THE JURISDICTION OF ALL COURTS FROM WHICH AN APPEAL MAY BE TAKEN FROM SUCH COURTS, FOR THE PURPOSE OF ANY SUIT, ACTION OR OTHER PROCEEDING ARISING OUT OF ANY OF THEIR OBLIGATIONS UNDER OR WITH RESPECT TO OR IN CONNECTION WITH THIS LEASE, AND EXPRESSLY WAIVE ANY AND ALL OBJECTIONS THEY MAY HAVE AS TO VENUE IN ANY OF SUCH COURTS. 28. PAYMENT OF AFFILIATE OBLIGATIONS. Lessee is or may become indebted under or in respect of one or more leases, loans, notes, credit agreements, reimbursement agreements, security agreements, title retention or conditional sales agreements, or other documents, instruments or agreements, whether now existing or hereafter arising, evidencing Lessee's obligations for the payment of borrowed money or other financial accommodations owing to the Lessor or to one or more entities that are either a parent, subsidiary or affiliated company of the Lessor (herein the "Affiliates"). If Lessee pays or prepays all or substantially all of its obligations owing to any Affiliate, whether or not such payment or prepayment is voluntary or involuntarily made by Lessee before or after any default or acceleration of the obligations, then Lessee shall pay, at Lessor's option and immediately upon notice from Lessor, all or any part of Lessee's obligations owing to Lessor, including but not limited to Lessee's obligations under this Lease and all Schedules now or hereafter from time to time executed by Lessor and Lessee and made a part hereof. This Lease consists of twenty-eight sections, and the terms and provisions of any Schedule, Acceptance Certificate, Individual Leasing Record, Rider, Exhibit, Amendment or other document now or hereafter attached hereto and made a part hereof. THIS LEASE REPRESENTS THE FINAL AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS OR SUBSEQUENT ORAL AGREEMENTS BETWEEN THE PARTIES. LESSEE ACKNOWLEDGES AND CERTIFIES THAT NO SUCH ORAL AGREEMENTS EXIST. This Lease may not be amended, nor may any rights hereunder be waived, except by an instrument in writing signed by the party charged with such amendment or waiver. The term "Lessee" as used herein shall mean and include any and all Lessees who sign hereunder, each of whom shall be jointly and severally bound hereby; and the term "Lessee" will also include any successors and permitted assignees of Lessee. This Lease will not be binding on Lessor until executed by Lessor. This Lease may be executed in any number of counterparts and by different parties hereto or thereto on separate counterparts, each of which, when so executed and delivered, shall be an original, but all such counterparts shall together consist of but one and the same instrument; provided, however, that to the extent that this Lease and/or the Schedule would constitute chattel paper, as such term is defined in the UCC, no security interest herein or therein may be created through the transfer or possession of this Lease in and of itself without the transfer or possession of the original of such Schedule and incorporating this Lease by reference; and no security interest in this Lease and Schedule may be created by the transfer or possession of any counterpart of such Schedule other than the original thereof, which shall be identified as the document marked "Original" and all other counterparts shall be marked "Duplicate". IN WITNESS WHEREOF, the parties have caused this Lease to be duly executed by their respective officers thereunto duly authorized as of the day and year first above written. LESSOR: LESSEE: Citizens Leasing Corporation, d/b/a CITIZENS ASSET FINANCE THE BOLAN G OUP II I, /C. By: ) By: n/1 I 1 Title: . Title: ~')i , ^ ~U M t tJ MASTER EQUIP LEASE AGRT CLC-003 (REV 7/05) ,t 33017164 Fed Tax ID No ~0 JJ . - t( Jurisdiction of Incorporation/Organization: MA Organizational I.D. No.: N/A Page 7 of 7 4j. q 3 occurs. In the event of any inconsistency between this Lease and any Schedule, Individual Leasing Record or Rider hereto, the latter shall be controlling. This lease shall be governed by and construed according to the laws of the .State of Rhode Island. LESSEE AND ANY GUARANTOR OR OTHER PARTY LIABLE FOR PAYMENT OR PERFORMANCE OF THIS LEASE HEREBY CONSENT AND SUBMIT, TO THE EXTENT THEY MAY LAWFULLY DO SO, TO THE JURISDICTION OF THE COURTS OF THE STATE OF RHODE ISLAND AND THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF RHODE ISLAND, AS WELL AS TO THE JURISDICTION OF ALL COURTS FROM WHICH AN APPEAL MAY BE TAKEN FROM SUCH COURTS, FOR THE PURPOSE OF ANY SUIT, ACTION OR OTHER PROCEEDING ARISING OUT OF ANY OF THEIR OBLIGATIONS UNDER OR WITH RESPECT TO OR IN CONNECTION WITH THIS LEASE, AND EXPRESSLY WAIVE ANY AND ALL OBJECTIONS THEY MAY HAVE AS TO VENUE IN ANY OF SUCH COURTS. 28. PAYMENT OF AFFILIATE OBLIGATIONS. Lessee is or may become indebted under or in respect of one or more leases, loans, notes, credit agreements, reimbursement agreements, security agreements, title retention or conditional sales agreements, or other documents, instruments or agreements, whether now existing or hereafter arising, evidencing Lessee's obligations for the payment of borrowed money or other financial accommodations owing to the Lessor or to one or more entities that are either a parent, subsidiary or affiliated company of the Lessor (herein the "Affiliates"). If Lessee pays or prepays all or substantially all of its obligations owing to any Affiliate, whether or not such payment or prepayment is voluntary or involuntarily made by Lessee before or after any default or acceleration of the obligations, then Lessee shall pay, at Lessor's option and immediately upon notice from Lessor, all or any part of Lessee's obligations owing to Lessor, including but not limited to Lessee's obligations under this Lease and all Schedules now or hereafter from time to time executed by Lessor and Lessee and made a part hereof. This Lease consists of twenty-eight sections, and the terms and provisions of any Schedule, Acceptance Certificate, Individual Leasing Record, Rider, Exhibit, Amendment or other document now or hereafter attached hereto and made a part hereof. THIS LEASE REPRESENTS THE FINAL AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS OR SUBSEQUENT ORAL AGREEMENTS BETWEEN THE PARTIES. LESSEE ACKNOWLEDGES AND CERTIFIES THAT NO SUCH ORAL AGREEMENTS EXIST. This Lease may not be amended, nor may any rights hereunder be waived, except by an instrument in writing signed by the party charged with such amendment or waiver. The term "Lessee" as used herein shall mean and include any and all Lessees who sign hereunder, each of whom shall be jointly and severally bound hereby; and the term "Lessee" will also include any successors and permitted assignees of Lessee. This Lease will not be binding on Lessor until executed by Lessor. This Lease may be executed in any number of counterparts and by different parties hereto or thereto on separate counterparts, each of which, when so executed and delivered, shall be an original, but all such counterparts shall together consist of but one and the same instrument; provided, however, that to the extent that this Lease and/or the Schedule would constitute chattel paper, as such term is defined in the UCC, no security interest herein or therein may be created through the transfer or possession of this Lease in and of itself without the transfer or possession of the original of such Schedule and incorporating this Lease by reference; and no security interest in this Lease and Schedule may be created by the transfer or possession of any counterpart of such Schedule other than the original thereof, which shall be identified as the document marked "Original" and all other counterparts shall be marked "Duplicate". IN WITNESS WHEREOF, the parties have caused this Lease to be duty executed by their respective officers thereunto duly authorized as of the day and year first above written. LESSOR: Citizens Leasing Corporation, d/b/a CITIZENS ASSET FINANCE By: Title; MASTER EQUIP LEASE AGRT CLC-003 (REV 7105) Page 7 of 7 LESSEE: THE BOL N_GROUP e.L.C. By: Title: Fed Tax ID No.: 20-3301164 Jurisdiction of Incorporation/Organization: MA Organizational I.D. No.: NIA kvA,WL 4 Jq~ Citizens Asset Finance PROGRESS PAYMENTS RIDER NO, 1 This Progress Payments Rider is annexed to Lease Line Schedule No. 1 dated August 15, 2005 (the "Schedule") to, and is hereby incorporated by reference in, the Master Equipment Lease Agreement dated as of August 15, 2005 (the "Lease") between Citizens Leasing Corporation, d/b/a CITIZENS ASSET FINANCE ("Lessor") and THE BOLAND GROUP Iii, L.L.C. ("Lessee"). In order to facilitate the delivery of the Equipment described in the Schedule (the "Schedule Equipment"), Lessee has requested that Lessor accede to the provision of the supplier of the Schedule Equipment to pay all or a portion of the purchase price and/or related charges for such Schedule Equipment to such supplier in advance of the Delivery Date (as defined in the Schedule) for such Schedule Equipment, and Lessee hereby agrees in connection therewith to pay to Lessor as supplemental rent a Progress Payments Service Charge as set forth herein. Lessee shall pay to Lessor a Progress Payment Service Charge for each day from and after the date of any progress payment made by Lessor equal the product of the aggregate amount of all progress payments made by Lessor with respect to the Schedule Equipment as set forth below multiplied by the Daily Factor as set forth below. The Daily Factor shall equal one percent greater than the fluctuating rate of interest designated by holder from time to time as its "Prime Rate" of interest, such rate to change as and when the Prime Rate changes, but in no event shall the interest exceed that allowable under applicable law. Amount of Progress Payments: $500,000.00 Daily Factor:.000208 The Lessor may, at its option, readjust the Daily Factor on the first day of any month to reflect changes in current money market conditions during the time period of this rider. Lessee shall pay the above Progress Payments Service Charge commencing on the first day of the month succeeding the first Progress Payment by Lessor and continuing on the first day of each month thereafter until the Lease Term Commencement Date for the Individual Leasing Record attached to and made a part of the Schedule. In the event that the Delivery Date (as defined in the Schedule) has not occurred on or before January 15, 2006, Lessee shall also pay to Lessor an amount equal to the aggregate amount of progress payments theretofore made by Lessor and upon such payment, together with the payment of any other amounts due and payable pursuant to the Lease, Lessor shall assign to the Lessee any rights which Lessor may have with respect to the Schedule Equipment, and all obligations of Lessor and Lessee (except for Lessee's obligations pursuant to paragraph 22 of the Lease, which shall survive such assignment) with respect to such Schedule Equipment shall cease. The amounts of any progress payments made by Lessor shall constitute amounts paid by Lessor in respect of Schedule Equipment arising out of, in connection with, and resulting from, the Lease and the Schedule Equipment for purposes of the Lease, including without limitation for the purpose of paragraph 22 of the Lease. Nothing herein shall be construed as a waiver or limitation of any rights of Lessor under the Lease. All terms used herein which are not defined herein shall have the meaning given to such terms in the Lease. Dated: August 15, 2005 LESSOR: Citizens Leasing Corporation, d/b/a CITIZENS ASSET FINANCE By: Title: .Klf /.Gf [ G PPR•PRIME+CLC-039 (REV 7105) LESSEE: THE BOLAND GROUP III, C. By: ~►1 Title:-_ ` Yd -bo ..f CERTWICATE OF ORGANIZATION OF THE BOLAN,D GROUP M, L.L.C. (Pursuant to the provisions of Section 12 of the Massachusetts Limited Liability Company Act) To the State Secretary Conanaonwealth ofMassachvwtts It is hereby certified that: FIRST: The name ofthe limited liability company (the "cornpany") is: The BolMd. Group, III,L.L.C. SECOND: Tire address of the office o£ the company in the Commonwealth of Massachusetts, xetlyked to be maintained by the provisions of Section 5 ofthe Massachrt$etts Limited Liability Company .A,ct, and where the records are to be kept as prescribed by the provisions of Section 9 of said Act, is 35 Magnolia Avenue, Gloucester, Massachusetts 01930. . TI:IIRD: The name and the address within the Commonwealth of Massachusetts of the resident agent for service of process for the company is: James L. Boland, 35 Mapofia. Avenue, Gloucester;, Massachusetts 01930. laOURTH: The company is not to have a. specific date of dissolution. FII+ ITT: The name and the address of each manager of the company at the time of its formation are; MA SOC . Filing Npo.E W21 %&&IN CO: PM i r V .n . l i L V V J J• J/ r r r v V I t J V i V J l 1 1 i i L NAME James L. Boland . ADDRESS 35 Magnolia. Avenue Gloucester, MA 01930 SIXTH: The general 0acter of the, company's business is the ownership and operation of a "Fuddruclcere' restaurant in Reading, Massachusetts. SEVENTH., The name of each person who is authorized to execute any documents to be fired vdth the Office of the State Secretary is: James L. Poland 35 Magnolia Avenue Gloucester, MA 01930 qb ti) ( IN WITNESS WHERBOY AND UNDER. THE PENALTIES OF PERJURY, the person From: unknown Page: 3/4 Date: 8/11/2005 3:30:57 PM 0810412005 07_42 8785254801 PACE 09 whose signature appears below does hcreby afm and exaCute this Certificate oforganization as ip auftri=d person oo this ji day csf kly, 200, Jmes L,..$ WA Authorized Person - O(vv 1 MA SOC Filing Number: 200521605450 Date: 08/1112005 3:31 PM THE COMMONWEALTH OF MASSACHUSETTS I hereby certify that, upon examination of this document, duly submitted to me, it appears that the provisions of the General Laws relative to corporations have been complied with, and I hereby approve said articles; and the filing fee having been paid, said articles are deemed to have been filed with me on: August 11, 2005 3:31 PM WILLIAM FRANCIS GALVIN Secretafy of the Commonwealth t, 9 4 A q - o SER ~ AIRY F TH FRANC48 Q WgALTH / GATE LEAK 149414-1-0 ~~0 O y 1 y OPERATING AGREEMENT OF THE BOLAND GROUP III, L.L.C. A MASSACHUSETTS LIMITED LIABILITY COMPANY y~ env OPERATING AGREEMENT This is an Agreement, entered effective August 11, 2005, by and among The Boland Group III, L.L.C. (the "Company"), James L. Boland ("Boland") and Janet S. Boland ("Janet"). The above referenced individuals and any other persons who may subsequently become members are referred to as a "Member" or "Members" in this Agreement. Background The Members own all of the interests in the Company and desire to set forth their understandings concerning the ownership and management of the Company. The Company operates a Fuddruckers restaurant in Reading Massachusetts (the "Restaurant"). The Members and the Company want to preserve continuity in the management and policies of the Company and to that end desire to impose certain restrictions and obligations on each other with regard to the transfer or other disposition of membership interests and certain other business matters. NOW, THEREFORE, acknowledging the receipt of adequate consideration and intending to be legally bound, the parties agree as follows: 1. ARTICLE ONE: CONTINUATION OF LIMITED LIABILITY COMPANY 1.1 Continuation of Limited Liability Company. The Members hereby agree to continue the Company in accordance with and pursuant to the Massachusetts Statutes governing Limited Liability Companies (the "Act"). The rights and obligations of the parties to one another and to third parties shall be governed by the Act except that conflicts between provisions of the Act and provisions in this Agreement. shall be resolved in favor of the provisions in this Agreement except where the provisions of the Act may not be varied by contract as a matter of law. This Agreement shall supercede any prior Operating Agreement for the Company. 1.2 . Name. The name of the Company shall be "The Boland Group III, L.L.C." and all of its business shall be conducted under that name or such other name as may be designated by the Members. 1.3 Term. The term of the Company shall be perpetual, unless sooner terminated it to the provisions of this Agreement or the Act. 1.4 Business. The character of the business and the purposes of the Company shall be operate the Restaurant and to engage in any and all activities related or incidental thereto. In crying on, its business, the Company may acquire and dispose of property, enter into leases or rer contracts and agreements, incur indebtedness, grant liens and security interests on ,mpany property and do all such acts and execute all such documents and instruments as the embers deem advisable. 0 l°~ r 1.5 Fiscal Year. The fiscal and taxable year of the Company shall be the calendar year. 1.6 Nature,of Each Member's Interest in the Company. The interest of each Member in the Company shall be personal property for all purposes. All property owned by the Company, whether real or personal, tangible or intangible, shall'be beneficially owned b+:. nr' Company as an entity, and no Member individually shall have any beneficial ownership Y~ Y Y 'i ,gbh property, or the right to have any such property Partitioned. 1.7 Offices. The principal offices of the Company shall be at 910 Broadway, MA 01906 or at such other place as shall be designated by the Members from time to time. Company may also maintain such additional offices as the Members may designate from time =<k . . time. 1.8. Registered Office and Agent. The address of the Company's registered office in Massachusetts is P.O. Box 5599, Gloucester Massachusetts, 01930 and its registered agent is James L. Boland. The registered office and agent of the Company may be changed from time to time by the Members in accordance with the Act. 2. ARTICLE TWO: CONTRIBUTIONS AND LOANS BY MEMBERS 2.1 Right of Contribution. If pursuant to a personal guaranty of any Company liability, any party to this Agreement is required to pay all or a part of a liability of the Company, itAy : such party shall have a right of contribution against the other parties (if any) who guarantied such liability, in proportion to their respective Company Interests. 2.2 Additional Capital Contributions. Except as provided in section 2. 1, no Member shall have the obligation to contribute any additional capital to the Company and, except with the consent of all of the Members, no Member may contribute any additional amounts to the Company. 2.3 Members' Loans. 2.3.1 Generally. No Member may lend money to the Company without the prior written consent of all of the Members. Subject to applicable Commonwealth laws regarding maximum allowable rates of interest, loans made by any Member to the Company ("Member Loans") shall bear interest at the higher of (i) the highest prime lending rate published in the Wall Street Journal on the last business day of each month (and changing as that rate changes) :plus two percent (2%), or (ii) the minimum rate necessary to avoid "imputed interest" under section 7872 or other applicable provisions of the Internal Revenue Code of 1986, as amended ,'.(the "Code"). Such loans shall be payable on demand (subject to the priorities set forth in section -2.4.2) and shall be evidenced by one or more promissory notes. 2.3.2 Repayment of Loans. After payment of (i) current and past-due debt ce on liabilities of the Company other than Member Loans, (ii) all cash expenses of pany other than Member Loans and (iii) compensation to Members, the Company shall pay b1® t 4 y ~o J; 163023 the current and past-due debt service on any outstanding Member Loans before distributing any other amount to any Member pursuant to Article Four. Such loans shall be repaid pro rata, paying all past-due interest first, then all past-due principal, then all current interest, then all' current principal, and th9n all remaining principal, 2.4.3 Security for Member Loans. Any loans made by one or more Members to the Company shall be secured by a pledge of all the Company's assets. The Company shall cause the appropriate UCC filings to be made to evidence this agreement. Members shall ha=-,e equal priority under such security agreements and UCC filings. 2.4 Other Provisions on Members' Capital Contributions. Except as otherwise provided in this Agreement and by law: 2.4.1 No Member shall be required to contribute any capital to the Company; 2.4.2 No Member may withdraw any part of the Member's capital from the Company; 2.4.3 No Member shall be required to make any loans to the Company; 2.4.4 Loans by a Member to the Company shall not be considered a contribution of capital, shall not increase the capital account of the lending Member, and shall not result in the adjustment of any Member's Company Interest and the repayment of such loans by the Company shall not decrease the capital accounts of the Members making the loans; 2.4.5 No interest shall be paid on any initial or additional capital contributed to the Company by any Member; 2.4.6 Under any circumstance requiring a return of all or any portion of a capital contribution, no Member shall have the right to receive property other than cash; and 2.4.7 No Member shall be liable to any other Member for the return of the t4 X1 163023 Member's capital. 2.5 No Third Party Beneficiaries. Any obligation or right of the Members to contribute capital under the terms of this Agreement does not confer any rights or benefits to or upon any person who is not a party to this Agreement. ARTICLE THREE: COMPANY INTERESTS; CAPITAL ACCOUNTS 3.1 Company Interests. 3.1.1 Generally. Each Member shall have an undivided fractional ownership interest in the Company, and in the Company's capital and profits and losses, adjusted from time to time as provided in this Agreement ("Company Interest"). Initially, the Company Interests of 01 IF the Members shall be as follows: James L. Boland 91% Janet S. Boland 9% 3.1.2 Transfer of Interest. If a Member transfers all or a part of the Member's Company Interest (whether with or without consideration) in accordance with this Agreement, the transferor and the transferee shall each have such Company Interest as they may agree upon, provided that the sum of such Company Interests of the transferor and the transferee after the transfer shall equal the Company Interest of the transferor immediately before the transfer. 3.1.3 Redemption of Interest. If the Company acquires the Company Interest a Member, the Company Interest of each remaining Member shall be appropriately increased the Company Interest which is equal to the sum of (i) the remaining Member's existing )mpany Interest, plus (ii) the Company Interest obtained by multiplying the Company Interest the withdrawing Member by a fraction, the numerator of which is the remaining Member's isting Company Interest and the denominator of which is the aggregate existing Company terests of all remaining Members. 3.1.4 New Member. If a new Member is admitted to the Company (other than ; . result of a transfer by a Member of the Member's Company Interest), the new Member shall a Company Interest agreed upon by the pre-admission Members consenting to the ission, and the Company Interest of each of the pre-admission Members shall be ,opriately decreased to the Company Interest which is equal to (i) the pre-admission aber's existing Company Interest, less (ii) the Company Interest obtained by multiplying the ipany Interest of the newly admitted Member by a fraction, the numerator of which is the admission Member's existing Company Interest and the denominator of which is the °egate existing Company Interests of all pre-admission Members (the "Dilution Percentage"). 3.1.5 No Adjustment Without Consent. Except as provided herein, no in the Company Interest of any.Member in the Company shall be made at any time: 3.2 Capital Accounts. A capital account shall be established and maintained for each .r. Each Member's capital account shall initially be credited with the.amount of the .r's initial capital contribution. Thereafter, the capital account of a Member shall be ed by the amount of any additional contributions of the Member and the amount of or gain allocated to the Member under section 4.3.2, and decreased by the amount of any itions to the Member and the amount of loss or deduction allocated to the Member under 4.3.1 (including expenditures of the Company described in Code section 705(a)(2)(B)). otherwise specifically provided herein, the capital accounts of the Members shall be d and maintained in accordance with Code section 704 and the regulations issued by the y Department thereunder (the "Regulations"). qJ10" 163023 ARTICLE FOUR: DISTRLBUTIONS AND ALLOCATIONS 1.1 Distributions. 4.1.1 Generally. Within ninety (90) days following the end of each fiscal year, -h other more or less frequent intervals as the Members shall determine, the Cash Flow of ipany shall be distributed, first toward the outstanding balance on any Member Loans balance, if any, among the Members in accordance with their respective Company 4.1.2 Cash Flow Defined. anY's Cash 4.1.2.1 Generally. For purposes of this Agreement, the Comp i F1awfor any fiscal year means the excess (if any) of the Company's cash receipts over its cash e fpcrises during such year. For purposes of the preceding sentence, the Company's cash receipts silk-lnclude, without limitation, net receipts from operations, amounts released from Company reserve accounts, earnings on invested capital, the cash capital contributions of the Members and excess funds from any refinancing of properties held by the Company. The Company's cash 0111ses shall include, without limitation, interest and principal payments with respect to C6#i0gky indebtedness including Member Loans, capital expenditures, reinvestment of sale p"i eeds of Company assets, expenditures to acquire or improve Company assets, Company reserve accounts, and any cash expenses associated with the operation of the Company's lius14ess, including compensation paid to the Members pursuant to the terms of Section 6 hereof W'distributions to the Members pursuant to Section 4.1.3. 4.1.2.2 Reserves. Additions to and withdrawals from Company reserve accounts shall be made by the Members taking into account the anticipated cash needs of the Company for at least six (6) months. 4.1.3 Distributions to Fund Tax Liability. During any taxable year in which the Company recognizes net taxable income or gain, the Company shall make a good faith effort to distribute cash to the Members by April 15 of the following year in an amount at least equal to the amount of such net taxable income or gain multiplied by the highest combined federal and Massachusetts income tax rates in effect for individuals for such taxable year, reduced by (i) the amount of cash distributed to the Member, under section 4. 1.1 during such taxable year, and (ii) any credits generated by the Company during the current taxable year. Any distributions under this section 4.1.3 shall be made pro rata among all the Members based on their respective Company. Interests, notwithstanding that their respective tax liabilities may differ. 4.1.4 Exception for Liquidation. This section 4.1 shall not apply to distributions made upon the dissolution and liquidation of the Company. Such distributions shall instead be governed by Article Ten. 44,10 163023 4.2 Other Rules Governing Distributions. No distribution of assets of the Company not specifically authorized under this Agreement shall be made by the Company to any Member in the Member's capacity as a Member. 4.3 Allocations of Profit and Loss. 4.3.1 Allocation of Losses. During any fiscal year in which the Company recognizes a net loss or incurs expenses. described in Code section 705(a)(2)(B), such loss or expenses shall be allocated among all Members in accordance with their.respective Company Interests. 4.3.2 Allocation of Profit or Gain. During any fiscal year in which the Company recognizes a net profit or gain, such profit or gain shall be allocated among all Members in accordance with their respective Company Interests. 4.3.3 Special Rules. Notwithstanding the foregoing provisions of this section 4.3, the following special rules shall apply in allocating gain and loss among the Members: 4.3.3.1 Limitation of Members' Losses. Any loss or deduction that would otherwise be allocated to a Member pursuant to section 4.3.1 shall not be allocated to such Member to the extent the allocation of such loss or deduction would cause or increase an Adjusted Capital Account Deficit. (as defined below) for such Member. Instead, such loss or deduction shall be reallocated to the Members for whom such allocation would not cause or increase an Adjusted Capital Account Deficit in accordance with their respective Company Interests. 4.3.3.2 Qualified Income Offset. In the event any Member unexpectedly receives any adjustments, allocations, or distributions described in section 1.704- 1(b)(2)(ii)(d)(4), section 1. 704- 1 (b)(2)(ii)(d)(5), or section 1. 704-1 (b)(2)(ii)(d)(6) of the Regulations, items of Company, income and gain shall be specially allocated to each such Member in an amount and manner sufficient to eliminate, to the extent required by the Regulations, the Adjusted Capital Account Deficit of such Member as quickly as possible, provided that an allocation pursuant to this section 4.3.3.2 shall be made if and only to the extent that such Member would have an Adjusted Capital Account Deficit after all other allocations provided for in this section 4 have been tentatively made as if this section 4.3.3.2 were not in the Agreement. 4.3.3.3 Gross Income Allocation. In the event any Member has a Ficit Capital Account at the end of any Company fiscal year which is in excess of the sum of the amount such Member is obligated to restore to the Company, (ii) the amount such Dmber is deemed to be obligated to restore. pursuant to the penultimate sentences of 'gulations Sections 1.704-2(g)(1) and 1.704-2(i)(5), and (iii) the Member's share of debt 'giveness income arising from indebtedness described in section 4.3.3.7, each such Member all be specially allocated items of Company-income and gain in the amount of such excess as ickly as possible, provided that an allocation pursuant to this section 4.3.3.3 shall be made if d only to the extent that such Member would have a deficit Capital Account in excess of such dl 4J 163023 sum after all other allocations provided for in this section 4 have been tentatively made as if sections 4.3.3.3 and 4.3.3.2 were not in the Agreement. 4.3.3,4 Minimum Gain Chargeback. Except as otherwise provided in section 4.704-2(f) of the Regulations, notwithstanding any other provision of this section 4, if there is a net decrease in minimum gain during any Company fiscal year, each Member shall be specially allocated items of Company income and gain for such fiscal year (and, if necessary, subsequent fiscal years) in an amount equal to such Member's share of the net decrease in Company minimum gain, determined in accordance with Regulations section 1,704- 2(g). Allocations pursuant to the previous sentence shall be made in proportion to the respective amounts required to be allocated to each Member pursuant thereto. The items to be so allocated shall be determined in accordance with sections 1.704-2(0(6) and 1.704-20)(2) of the Regulations. This section 4.3.3.4 is intended to comply with the minimum gain Chargeback requirement in section 1.704-2(f) of the Regulations and shall be interpreted consistently therewith. 4.3.3.5 Distributions Attributable to Nonrecourse Debt. To the extent permitted by section 1.704-2(h)(3) of the Regulations, the Company shall endeavor to treat distributions as having been made from the proceeds of a nonrecourse liability only to the extent that such distributions would cause or increase an Adjusted Capital Account Deficit. 4.3.3.6 Nonrecourse Items. Items of deduction and loss that are 3E attributable to nonrecourse debt shall be allocated in the same manner as other items unless in the opinion of counsel, they are required to be allocated in a different manner pursuant to the r Regulations. 4.3.3.7 Recourse Indebtedness for Which No Member Bears the Risk of Loss. The Company may from time to time incur indebtedness that is recourse to the Company but the repayment of which has not been guaranteed by any Member. The Members acknowledge that uncertainty exists as to the proper allocation of losses and deductions attributable to such indebtedness under the Regulations because such indebtedness generally does not arise in an entity organized as a partnership under state law. However, the Members agree that, for purposes of the rules established in the Regulations, such indebtedness closely resembles nonrecourse debt. Accordingly, the Members agree that (i) items of deduction and loss attributable to such indebtedness shall be allocated in the same manner as other items, and (ii) the income that would be realized by the Company upon the cancellation *or forgiveness of such indebtedness shall be treated, for purposes of the Regulations and section 4.3.3.4, as "minimum gain". The approach set forth in the preceding sentence may be modified by the Company upon the advice of counsel. 4.3.3.8 Curative Allocations. The allocations set forth in sections 3.3.1 through 4.3.3.7 hereof (the "Regulatory Allocations") are intended to comply with certain quirements of the Regulations. It is the intent of the Members that, to the extent possible, all egulatory Allocations shall be offset either with other Regulatory Allocations or with special locations of other items of Company income, gain, loss, or deduction. Therefore, rtwithstanding any other provision of this section 4 (other than the Regulatory Allocations), the s 11 163023. I" Company shall make such offsetting special allocations of Company income, gain, loss, or deduction in whatever manner the Members determine to be appropriate so that, after such offsetting allocations are made, each Member's Capital Account balance is, to the extent possible, equal to the,Capital Account balance such Member would have had if the Regulatory Allocations were not part of the Agreement. In exercising its discretion under this section 4.3.3.8, the Company shall take into account future Regulatory Allocations under section 4.3.3.4 that, although not yet made, are likely to offset other Regulatory Allocations previously made under section 4.3.3.6. 4.3:3.9 Adjusted Capital Account Deficit. For purposes of this section 4.3.3., the "Adjusted Capital Account Deficit" of a Member means the deficit balance, if any, in such Member's capital account after taking into account the following adjustments: (A) Credit to such capital account (i) the amount the Member is obligated to restore to the Company pursuant to this Agreement or by law, (ii) the amount the Member is deemed to be obligated to restore to the Company pursuant to the penultimate sentence of section 1.704-2(g)(1) of the Regulations; and (iii) the Member's share of debt forgiveness income arising from indebtedness described in section 4.3.3.7; and (B) Debit to such capital account the. items described in sections 1. 704-1 (b)(2)(ii)(d)(4)-(6) of the Regulations. The foregoing definition of Adjusted Capital Account Deficit.is intended to comply with the provisions of section 1.704-1(b)(2)(ii)(d) of the Regulations and shall be interpreted consistently with such section. 4.3.3.10 Allocations Relating to Taxable Issuance of Company Interest. Any income, gain, loss, or deduction realized as a direct or indirect result of the issuance of an interest in the Company by the Company to a Member (the "Issuance Items") shall be allocated among.the Members so that, to the extent possible, the net amount of such Issuance > "NKi-jtems, together with all other allocations under this Agreement to each Member, shall be equal to the net amount that would have been allocated to each such Member if the Issuance Items had not been realized. a<; 4.3.4 Determination of Gain or Loss; Section 704(c) Allocation: The T 3'rR"Company's net profit, gain or loss under section 4.3.1 or 4.3.2 shall be the gain or loss calculated ;a bn the Company's books of accounts. Items of gain or loss calculated for federal income tax g,. j~;purposes shall be allocated in an identical manner, except that where the value of property as teflected on the Company's books differs from its federal income tax basis, allocations of taxable again and loss with respect to such property shall be made in the manner required by Code section i704(c). w. ! 4.3.5 Predistribution Adjustment. In the event property of the Company is stributed to one or more Members in kind, the amount of income, gain or loss which the {'ompany would have recognized had such property been sold for its fair market value on the ate of the distribution, to the extent such income, gain or loss has not previously been allocated 163023 IT among the Members, shall be allocated to the Members under sections 4.3.1 and 4.3.2. The allocation described in this section 4.3.5 is referred to as the "Predistribution Adjustment". 5. ARTICLE FIVE: MANAGEMENT OF THE COMPANY 5.1 Management by Boland. The business and affairs of the Company shall be directed, managed, and controlled by the Managing Member. The Managing Member shall be Boland until such time as the Members elect a replacement. Unless otherwise provided herein, all decisions shall require the vote/consent of the Members holding a simple majority of the Company Interests. 5.2 Call of Meetings. Meetings of the Members may be called at any time by any Member for any purpose. Any such meeting of Members shall be held upon two days' notice if given orally, either by telephone or in person, or by e-mail, or by five days' notice if given by depositing the notice in the United States mail, postage prepaid. Such notice shall specify the time and place of the meeting. Any such notice may be waived by a writing signed by the person or persons entitled to such notice either before or after the action with respect to which notice is waived. Any person attending a meeting without protesting, prior to its conclusion, a lack of proper notice shall be deemed to have waived notice of such meeting. 5.3 Meetings by Conference Telephone, Etc. Any or. all Members may participate in a meeting of the Members by means of conference telephone or any means of communication by which all persons participating in the meeting are able to hear each other. 5.4 Action Without Meeting. The Members may act without a meeting if, prior or subsequent to such action, all Members shall consent in writing to such action. 5.5 Execution of Documents. Contracts and agreements to which the Company is a parry shall be signed by all of the Members unless-, in a particular instance, the Members agree otherwise in writing. 6. ARTICLE SIX: OTHER RIGHTS OF MEMBERS; COVENANTS 6.1 Outside Interests. Nothing contained in this Agreement shall be construed to prevent Boland from owning an interest in other Fuddruckers Restaurants. The Members acknowledge that Boland is not obligated to devote his full-time to the business of the Company and that he presently owns other restaurants. Furthermore, Boland intends to develop additional ,restaurants and nothing contained in this Agreement shall grant to any other Member the right to participate in such other ventures. 6.2 Compensation of Members. Except as set forth in this Section 6.2 no person who is now or later becomes a party to this Agreement, who is a Member, owns an interest in a Member, is related to any person who is a Member or owns an interest in a Member, or is employed by the Company, shall receive compensation from the Company or its affiliates without the consent of all of the Members. For purposes of this Section, the term "total ~tJ 163023 compensation" shall not include profits distributions made to Members on account of their Interests in the Company. 6.3 Disclosure of Information. Each party shall disclose to the other parties information that is Known to such party and relates directly-to the Company and its business. This section is applicable only to information known to a party, and shall not be construed to require any party to acquire information. 6.4 Limitation of Liability; Indemnification: 6.4.1 Limitation of Liability to Company and Members. No person who is now or later becomes a party to this Agreement shall be liable to the Company or to any Member for any loss arising out of or in connection with the management of the business and affairs of the Company, or for any mistake of judgment, or for any action taken or omitted to be taken by such person, except by reason of such person's willful misconduct, recklessness, fraud or by reason of such person acting outside of such person's authority granted herein. 6.4.2 Indemnification; Payment of Expenses. 6.4.2.1 Indemnification. The Company shall indemnify and hold harmless each party to this Agreement from and against any and all claims and demands whatsoever, provided that (i) such claims or demands arise in connection with the Company and its business, and (ii) the act or failure to act giving rise to the claim for indemnification is not determined by a court to have constituted willful misconduct, fraud or recklessness or to have arisen by reason of the person acting outside of such person's authority granted herein. Such r # indemnification shall be made for any action taken or any failure to take action without regard to whether the Company would have the power to indemnify the person under any other provision of law or whether the indemnified liability arises from any action by or in the right of the s, Combanv itself. 6.4.2.2 Payment of Expenses. Expenses incurred by a person in fending any action or proceeding against which indemnification may be made pursuant to this ction may be paid by the Company in advance of the final disposition of such action or oceediAg upon receipt of an undertaking by or on behalf of such person-to repay such amount it shall ultimately be determined that such person is not entitled to be indemnified by the Ompany. 6.4.2.3 Continuation of Benefit. The indemnification and icement of expenses provided by, or granted pursuant to, this section shall continue as to a n who has ceased to serve in the capacity as to which such person was indemnified and inure to the benefit of the heirs, executors and administrators of such person. ARTICLE SEVEN: BANK ACCOUNTS; BOOKS OF ACCOUNT; REPORTS 7.1 Bank Accounts. Funds of the Company may be deposited in accounts at banks or ` t °her institutions selected by the Members. Withdrawals from any such account or accounts shall 163023 -~m- be made in the Company's name upon the signature of all Members or as otherwise agreed to by all of the Members, 7.2 Books and Records of Account. The Company shall keep at the principal offices of the Company, bo6ks and records of account for the Company, which shall, reflect a full and accurate record of each transaction of the Company. The books and records of the Company and all other Company documents (including a copy of this Agreement and all amendments and supplements hereto) may be inspected during normal business hours by any Member at such Member's sole expense by giving five (5) days' notice to the Company. 7.3 Annual Financial Statements and Reports. Within a reasonable period after the close of each fiscal year, the Company shall furnish to each Member with respect to such fiscal year (i) a statement showing in reasonable detail the allocation of the Company's net gain or loss under section 4.3, (ii) a statement showing in reasonable detail the computation of Company Cash Flow and its distribution under-section 4. 1, (iii) a balance sheet of the Company, (iv) a ,statement of income and expenses, and (v) such information from the Company's annual information return as is necessary for the Members to prepare their Federal, state and local income tax returns. The annual financial statements of the Company need not be audited by an independent certified public accounting firm unless the Members so elect or such audited statements are required by a creditor. 7.4 Tag Matters Member. Boland shall serve as the tax matters partner for the Company for Federal income tax purposes.. :8. ARTICLE EIGHT: TRANSFER OF COMPANY INTERESTS 8.1 Voluntary Transfers, First Right of Refusal. 8.1.1 Voluntary Transfers of a Member's Company Interest. The parties agree that a Member may not encumber, sell, transfer or otherwise dispose of any Company nterest except in accordance with and as permitted by this Agreement, or except with the `ry>~consent of all Members. Any purported transfer or issuance of Company Interests in violation of g . f ;plus restriction shall be void and of no effect, shall not be recognized on the Company's books, ''=end the purported transferee shall not be entitled to vote and shall not be entitled to receive a ttembership certificate or any distributions on or with respect to such Company Interests. The l arties agree that any~such transfer or acquisition may and should be enjoined. 8.1.2 Option of Company and Members. In the event a Member (the "Selling mber") receives and desires to accept a binding offer from a third party to acquire all or a tion of the Member's Company Interest (the "Transfer Interest"), the Selling Member shall fy the other Members (the "NonSelling Member" or the "NonSelling Members"), specifying Company Interest to be purchased, the purchase price, the approximate closing date, the form -onsideration, and such other terms and conditions of the proposed transaction that have been eed with the proposed purchaser (the "Sales Notice"). Within thirty (30) days after receipt of Sales Notice, each NonSelling Member shall notify the Selling Member and the other nSelling Members whether the NonSelling Member elects to purchase•the NonSelling ee t' 163023 Member's proportionate share of the Transfer Interest (based on the NonSelling Member's Company Interest) on the terms and conditions set forth in the Sales Notice, subject to section 8.1.2.1.4. If a NonSelling Member elects to purchase the NonSelling Member's proportionate share of the Transfer Interest, the NonSelling Member's notice to the Selling Member shall include reasonably satisfactory evidence that the NonSelling Member is financially capable of proceeding with such purchase on the terms and conditions set forth in the Sales Notice, subject to Section 8.1.2.1.4. 8.1.2.1 Special Rules. The following rules shall apply for purposes of this section: 5.1.2.1.1 If all Non-Selling Members elect not to purchase their proportionate shares of the Transfer Interest, or fail to respond to the Sales Notice within the thirty (30) day period described above, the Selling Member may proceed with the sale to the proposed purchaser, provided that a Selling Member may not dispose of the Transfer Interest to a person who is not then a Member unless the remaining Members unanimously consent in writing to the disposition to the intended transferee which consent may not be unreasonably withheld. The remaining members, in making their determination, shall consider, inter alia : (i) the knowledge and experience of the intended transferee in the business in which the Company is engaged, (ii) the expertise of the intended transferee in light of the needs of the Company, iii prior and existing dealings with, or relationships of, the intended transferee, and (iv) whether the involvement of the intended transferee in the Company could adversely affect the operations of 7. the Company. 8.1.2.1.2 If some NonSelling Members elect to purchase but others do not, the electing NonSelling Members may, in turn, acquire the remaining Transfer Interest on a pro rata basis. 8.1.2.1.3 If, after giving effect to section 8.1.2.1.2, the NonSelling Members have not elected to purchase the entire Transfer Interest, the Selling Member may proceed with the sale to the proposed purchaser of the Selling Member's entire Transfer Interest provided that a Selling Member may not dispose of the Transfer Interest to a person who is not then a Member unless the remaining Members unanimously consent in writing to the disposition to the intended transferee which consent may not be unreasonably withheld. The remaining Members, in making their determination, shall consider, inter alia, (i) the knowledge and experience of the intended transferee in the business in which the Company is ;:engaged, (ii) the expertise of the intended transferee in light of the needs of the Company, (iii) prior and existing dealings with, or relationships of, the intended transferee, and (iv) whether the involvement of the intended transferee in the Company could adversely affect the operations of 'the Company." 8.1.2.1.4 If, after giving effect to section 8.1.2.1.2, the onSelling Members have elected to purchase the entire Transfer Interest, they shall do so on the rms and conditions set forth in the Sales Notice, subject only to the right to pay the )nsideration over five (5) years with interest at the highest prime lending rate published in the k ^k 163023 ~Z- Wall Street Journal on the last business day of each month (and changing as that rate changes), plus two percent (20/o), with sixty (60) equal monthly payments of principal and interest. 8.1.2.1.5 If the NonSelling Members elect not to purchase the Transfer Interest, orfail to respond to the Sales Notice within the thirty (30) day period described above, and the Selling Member and the purchaser subsequently agree to a reduction of the purchase price of twenty percent (20%) or more, to a change in the consideration from cash or readily tradeable securities to deferred payment obligations or nontradeable securities, or to any other equally significant change to the terms set forth in the Sales Notice, such agreement between the Selling Member and the purchaser shall be treated as a new offer and shall again be subject to this section. 8.1.2.1.6 If the NonSelling Members elect to purchase the Transfer Interest in accordance with this section, such election shall have the same binding effect y as the then-current agreement between the Selling Member and the proposed purchaser. Thus, for example, if the Selling Member and the purchaser have entered into a non-binding letter of intent but have not entered into a binding definitive agreement, the election of the NonSelling Members shall have the effect of a non-binding letter of intent with the Selling Member. Conversely, if the Selling Member and the purchaser have entered into a binding definitive agreement, the election of the NonSelling Members shall have the effect of a binding definitive agreement. If the Selling Member and the NonSelling Members are deemed by this subsection to have entered into only a non-binding letter of intent, neither shall be bound to consummate a transaction if they are unable to agree to the terms of a binding agreement. 8.1.3 Voluntary Transfers of all Company Interests. If any Member receives a bonafide offer from a third party to purchase all of the Company Interests for an amount in excess of the amount set forth on Schedule 8.1.3, the Member shall notify the other Members ~j specifying the purchase price, the approximate closing date, the form of consideration, and such other terms and conditions of the proposed transaction that was agreed with the proposed purchaser (the "Purchase Notice"). Within thirty (30) days after receipt of the Purchase Notice, any Member may notify the other Members of its desire to purchase all of the Company Interests not owned by such Member on the same terms and conditions as set forth in the Purchase Notice. If a Member elects to purchase all of the Company Interests, the Member shall complete such purchase on the terms and conditions set forth in the Purchase Notice with ninety (90) days of the closing date proposed in the Purchase Notice. If no Member so elects to purchase all of the 'Company Interests, the parties shall cooperate fully with the third party purchaser in the- purchase of the Company Interests. Without intending to limit the foregoing, the parties also agree to cooperate with any prospective purchaser's due diligence efforts which may occur prior to any binding offer being made by a third party for -a purchase of all of the Company Interests, provided said purchaser executes a Confidentiality Agreement acceptable to the Company and its then counsel. 8.1.4 Admission of Transferee. Any permitted transferee of all or part of a ,``Member's Company Interest pursuant to this section 8.1 shall be admitted to the Company as a "r Member on the date agreed by the transferor and the transferee, but only if the transferee agrees m writing to be bound as a Member by all the provisions of this Agreement. B t1 r 163023 F~. 1 it : 8.2 Purchase Options/Obligations Upon Certain Other Transfers 8.2.1 Death or Disability. If a Member, should die or become totally and permanently disabled,-'such Member, (or the personal representative for a deceased Member's estate) shall be deemed to have offered to sell all of the Company Interest owned by such Member pursuant to the terms of this Agreement. The Company shall give notice of such event to the remaining Members. 8.2.2 Termination of Employment. Upon the termination of a working Member's, employment by the Company, other than by reason of death or disability, such Member shall be deemed to have offered to sell all, but not less than all, of the Company Interest owned by such Member pursuant to the terms of this Agreement. The Company shall give notice of such event to the remaining Members. r 8.2.3 Involuntary Transfers. If all or a portion of the Company Interest owned by any Member is transferred involuntarily other than upon the death of such Member, then the Member or other person holding such Company Interest following the involuntary transfer shall a be deemed to have offered to sell such Company Interest pursuant to the terms of this Agreement, and a notice to such effect shall be deemed to have been sent to the Company and the other Members on the date of such transfer. 8.2.4 Act of Insolvency. If any Member shall commit an Act of Insolvency,' . such Member shall be deemed to have offered to sell all, but not less than all, of the Company Interest owned by such Member pursuant to the terms of this Agreement. The Company shall give notice of such event to the remaining Members. The Member offering or deemed to be offering to sell the Member's Company Interest is referred to in this section as the "Terminated Member," the Company Interest (or portion thereof) offered for sale as the "Option Interest," and the date of the event giving rise to such offer as the "Termination Date." 8.2.5 Purchase Options and Obligations. 8.2.5.1 Member Obligation to Purchase. In the event of a death of a Member, each of the remaining Members shall have the obligation to purchase a pro rata portion of the Option Interest based on the Company Interest owned by each remaining Member. 8.2.5.2 Member Option to Purchase. Also, in the event of a deemed offer of a Member's Interest upon the total disability of a Member, under Section 8.2.1, or upon the circumstances set forth in 8.2.2, 8.2.3, or 8.2.4, each of the remaining Members shall have the option to purchase a pro rata portion of the Option Interest, based on the Company Interest owned by each such remaining Member and shall exercise such option by giving notice to the Terminated Member (or the Terminated Member's personal representative or successor in interest ("Representative`)), within thirty (30) days after the Termination Date. If any remaining Member does not elect to purchase such Member's full pro rata allotment of the Option Interest, qJ11 . 163023 167 then the other remaining Members shall have the option purchase more of such Option Interest on a pro rata basis. 8.2.6 Act of Insolvency. A Member shall be treated as having committed an "Act of Insolvency". if the Member (i) makes an assignment for the benefit of creditors; (ii) files a voluntary petition in bankruptcy; (iii) is adjudicated a bankrupt or insolvent; (iv) files a petition or answer seeking for herself any reorganization, arrangement, composition, readjustment, liquidation, dissolution or similar relief under any statute, law, or regulation; (v) files an answer ' or other pleading admitting or failing to contest the material allocations of a petition filed against the Member in any proceeding set forth in (iv) above; or (vi) seeks, consents to, or acquiesces in the appointment of a trustee, receiver, or liquidator of all or any substantial part of the Member's properties; or (vii) if within 120 days after the commencement of any proceeding against the Member seeking reorganization, arrangement, composition, readjustment, liquidation, dissolution or similar relief under any statute, law, or regulation, the proceeding has not been dismissed; or (viii) if within 90 days after the appointment without the Member's consent or acquiescence of a trustee, receiver, or liquidator of all or any substantial part of the Member's propert ies, the appointment is not vacated or stayed, or within 90 days after the expiration of any such stay, the appointment is not vacated. 8.2.7 Involuntary Transfers. A Member shall be deemed to have transferred the Member's Company Interest involuntarily if such Company Interest is transferred by operation of law, including without limitation, transfers to a Member's spouse pursuant to a divorce decree, transfers to the guardian or conservator of an incompetent Member, or transfers to a trustee in bankruptcy or transfers from an estate or trust in distribution. In the event of a Member's death or the adjudication of a Member as incompetent, if the Company does not exercise its option to purchase the Member's Company Interest, or until such exercise, the Member's executor, administrator, guardian or other legal representative, shall have the power as assignee to exercise all of that Member's rights to administer the Member's property. 8.2.8 Treatment of Terminated Member as Creditor. If the Company or a remaining Member exercises a purchase option under this section 8.2, the Terminated Member or the Terminated Member's representative (as the case may be) shall not be treated as a Member under this Agreement, but shall be treated as an ordinary creditor of the Company as of the Termination Date. .Y 8.2.9 Admission of Transferees. Notwithstanding section 8.2.8, in the event of U'a transfer of a Terminated Member's Company Interest pursuant to this Section 8.2, the Terminated Member's executor, administrator, guardian or other legal representative, or the ffbeneficia who receives the Terminated Member's Company Interest from an estate or trust, }rimay be admitted as a Member, upon the consent of all of the remaining Members, provided that 1. the transferee agrees in writing to be bound as a Member by all the provisions of this Agreement. 8.2.10 Purchase Price. The purchase price of the Option Interest shall be equal > such Option Interest multiplied by the Company's Value (as hereafter defined) as of the ermination Date. 4di19 163023 -r t' 8.2.11 Payment Terms. The purchase price under this section 8.2 shall be paid by delivering to the Terminated Member -(or the Terminated Member's Representative) a promissory note (in the form of Exhibit A attached hereto) in the amount of the purchase price. Such promissory note shall provide for payment of the amount of the note, plus interest on the outstanding balance at the applicable federal rate in effect under the Code on the Termination Date, in ten-(10) annual equal and successive installments of principal and interest with the first such payment due one (1) year after the closing date. Notwithstanding the foregoing provisions of this Section 8.2.11, if any of the remaining Members or the Company is the beneficiary of any life or disability insurance policies insuring the life or health of a Terminated Member which was purchased to fund the obligations of the Company or the Members under this Agreement (as opposed to "key maY insurance purchased by the Company, for example), the entire proceeds of the insurance policy shall be applied towards the purchase price of the Option Interest. Furthermore, if the proceeds of such policy or policies are in excess of the Purchase Price as ' determined pursuant to the terms of this Agreement, then the Purchase Price shall be increased to equal the amount of such insurance proceeds and paid to the Terminated Member's Representati`e immediately upon receipt from the insurance company(s). 8.2.12 Closing. Closing of purchases under this section 8 shall be held within j ninety (90) days after the Termination Date, except that in the case of the purchase of a deceased Member's interest, closing may be postponed beyond ninety (90) days, but no later than thirty (30) days after the appointment of a personal representative for the deceased Member's estate. At closing, the selling and purchasing parties shall execute and deliver all documents necessary and appropriate to carry out the terms and conditions of this section 8. 8.2.13 Company's Value. 8.2.13.1 In General. The Company Value shall be equal to 3.5 times the Company's earnings before interest and taxes and amortization ("EBITAfor the 12 months immediately preceding the Termination Date 8.2.13.2 Designation of Company's Value. The Members may, but shall not be required to, designate the Company's Value from time to time by separate written agreement. Such a designated value shall remain in effect for twelve (12) months (unless another value is designated within such twelve (12) months), and shall supersede the value determined under the other provisions of this section 8 with respect to any purchase and sale of a Company Interest with respect to which the Termination Date falls within such twelve (12) month period. ;y A value designated pursuant to this section shall be valid only if accompanied by the signatures of all of the Members. A designation by the Members may, but need not, be in the form of §chedule B. 8.2.14 Capital Deficit Funding Pursuant to Sale of Interest. If a Capital ~:Account Deficit exists as of the Termination Date which is caused or increased by liabilities of ;:,the Company for which the Members are personally liable ("Personal Liability Debt"), the 12.1 emainina Members shall have a right of contribution vis-a-vis the Terminated Member, or the 4A,fferminated Member's successors in interest as the case may be, to the extent of the Terminated I. JV ember's share of such Personal Liability Debt, but only to the extent such Personal Liability Y 163023 Debt does not exceed the amount of the Capital Account Deficit as of the Termination Date. The right of contributions granted by this section does not confer any rights or benefits to any person who is not a party to this Agreement. 8.2.15 Disability Defined. A person shall be treated as totally and permanently disabled for purposes of this section if and only if the person is treated as disabled under the terms of the person's written employment agreement with the Company. In the case of a person who does not have a written employment agreement defining disability, such person shall be treated as disabled if and only if the person is unable to perform substantially full time duties on behalf of the Company for a period of twelve (12) consecutive months due to injury or illness. Each party agrees to submit to reasonable medical examinations (at the expense of the requesting party) in furtherance of the purposes of this section. 8.2.16 Special Rule. Notwithstanding the provisions of this Section Eight, any ' option to purchase either Janet S. Boland's interest or Boland's interest shall be subordinate to their right to transfer their Interests to each other or their descendants (by gift, bequest or otherwise). See section 8,1,5 above. 8.3 Withdrawal. No Member shall have the right or power to voluntarily withdraw from the Company. A Member transferring the Member's Company Interest pursuant to a permitted transfer under sections 8.1 or 8,2 of this Agreement shall not be treated as withdrawing from the Company. i' 8.4 Allocations with Respect to Transferor's Interest. Except where the Code otherwise requires (for example, in the case of certain "allocable cash basis items" as defined in Code section 706(d)(2)(B)), upon the permitted assignment by a Member of all or any part of the Member's Company Interest, each item of Company income (or loss) and deduction allocable to the interest shall be pro rated (as to the transferred interest) between the transferor and the transferee on the basis of the number of days in the taxable year of the Company preceding (and including) and succeeding the date as of which the assignment is effective. Gain or loss from the sale or other taxable disposition of a Company capital asset shall be allocated to the persons who were Members at the time such gain or loss was recognized by the Company, unless otherwise provided herein. "Y 8,5 Section 754 Election. Upon the timely written request of any Member, the Company shall elect, pursuant to Section 754 of the Code, to adjust the basis of Company property as provided in Sections 734(b) and 743(b) of the Code. The then acting tax matters {7:: partner shall be responsible for determining the adjustments required or permitted by said N,i sections of the Code provided that in the case of any adjustment required or permitted under ; r Section 743(b) of the Code the transferee Member or Members shall be solely responsible. for x:4 determining the adjustments required thereunder unless such Member or Members provide the 3'aax matters person with all the information necessary for the tax matters person to determine the adjustments. qj iLl 163023 t 9. ARTICLE NINE: ADMISSION OF NEW MEMBERS 9.1 In General;, New Members may be admitted to the Company pursuant to Article Eight as a result of the pef.mitted transfer of Company Interests. New Members also may be admitted to the Company pursuant to this Article Nine for such capital contributions to the Company or on such other terms and conditions as shall be approved by all the Members. The Company Interest of a new Member admitted pursuant to this Article Nine shall be as fixed by the Members approving of the Member's admission, with an appropriate reduction in the Company Interest of all of the existing Members. 10. ARTICLE TEN: DISSOLUTION AND LIQUIDATION 10.1 Dissolution. 10A.1 Generally. Except as provided otherwise in this Agreement, the Company shall be dissolved upon the occurrence of any of the following events, but not otherwise: F 431 10.1.1.1 The cessation of the Company's business; . 10.1.1.2 The vote of all the Members. 10.1.2 Effective Date. Dissolution shall be effective on the date of the giving rise to the dissolution, but the Company shall not terminate until liquidation of the any has been completed in accordance with the provisions of section 10.2. 10.2 Liquidation. 10.2.1 Generally. If the Company is dissolved, the Company's assets t be liquidated and no further business shall be conducted by the Company except for such )n as shall be necessary to wind-up its affairs and distribute its assets to the Members iuant to the provisions of this Article Ten. Upon such dissolution, the Members shall appoint or more liquidators (who may be one or more of the Members), who shall have full authority rind-up the affairs of the Company and to make final distribution as provided herein. 10.2.2 Distribution of Assets. After liquidation of the Company, the of the Company shall be distributed or applied as follows: 10.2.2.1 First, to satisfy all liabilities of the Company other than Loans, and to pay all expenses of liquidation; 10.2.2.2 Second, to the creation of any reserves which the ~idators deem reasonably necessary to meet any contingent or unforeseen liabilities or 1I9 ations of the Company arising out of or in connection with the Company; 163023 10.2.2.3 Third, to repay Member Loans or other liabilities owed to Members; and 10.2.2:4 Fourth, to the Members in accordance with their positive capital account balances, after allocating gain or loss among the Members pursuant to Article Four. 10.2.3 Distributions In Kind. The assets of the Company shall be liquidated as promptly as possible so as to permit distributions in cash, but such liquidation shall be made in an orderly manner so as to avoid undue losses attendant upon liquidation. In the event that in the liquidator's opinion complete liquidation of the assets of the Company within a reasonable period of time proves impractical, assets of the Company other than cash may be distributed to the Members in kind but only after all cash and cash-equivalents have first been distributed, and after the Predistribution Adjustment described in Article 4.3.5. 10.2.4 Statement of Account. Each Member shall be furnished with a statement prepared by the Company's accountants, which shall set forth the assets and liabilities of the Company as of the date of complete liquidation, and the capital account of each Member immediately prior to any distribution in liquidation. 11. , ARTICLE ELEVEN: MISCELLANEOUS 11.1 Amendments; Waivers. No amendment, modification, or waiver of any provision of this Agreement shall be binding unless in writing and signed by the party against whom the operation of such amendment, modification, or waiver is sought to be enforced. No delay in the exercise of any right shall be deemed a waiver thereof, nor shall the waiver of a right or remedy in a particular instance constitute a waiver of such right or remedy generally. 11.2 Notices. Any notice or document required or permitted to be given under this I Agreement shall be deemed to be given on the date such notice is (i) deposited in the United States mail, postage prepaid, certified mail, return receipt requested, (ii) deposited with a commercial overnight delivery service with delivery fees paid, or (iii) transmitted by facsimile with transmission acknowledgment, to the following addresses or such other address or addresses as the parties may.designate from time to time by notice satisfactory under this section: James L. Boland 35 Magnolia Ave Gloucester, MA 01930 A copy of any Notice to James Boland shall be sent to: Peter*R. Spirgel, Esquire Flaster/Greenberg P.C. 1810 Chapel Avenue West, 3rd Floor Cherry Hill, NJ 08002 cad, 1203 163023 11.3 Governing Law. This Agreement shall be governed by the internal laws of Massachusetts without giving effect to the principles of conflicts of laws. Each party hereby consents to the personal jurisdiction of the Federal or Massachusetts courts located in Suffolk County, Massachusetts, and agrees that all disputes arising from this Agreement shall be prosecuted in such courts. Each party hereby agrees that any such court shall have in personam jurisdiction over such party and consents to service of process by notice sent by regular mail to -the address set forth above and/or by any means authorized by Massachusetts law. 11.4 Representation by Each Member. Each Member hereby warrants and represents that neither such person's employment by the Company nor the performance of such person's duties on behalf of the Company violate or conflict with any contract or agreement to which such person is a party or by which such person is bound. 11.5 Complete Agreement. This Agreement constitutes the complete and exclusive statement of the agreement among the parties. It supersedes all prior written and oral statements, including any prior representation, statement, condition or warranty. Except as expressly provided otherwise herein, this Agreement may not be amended without the unanimous written consent of the Members. 11.6 Specific Performance. The parties recognize that irreparable injury will result from a breach of any provision of this Agreement and that money damages will be inadequate to fully remedy the injury. Accordingly, in the event of a breach or threatened breach of one or more of the provisions of this Agreement, any party who maybe injured (in addition to any other remedies which may be available to that party) shall be entitled to one or more preliminary or permanent orders (i) restraining and enjoining any act which would constitute a breach or (ii) compelling the performance of any obligation which, if not performed, would constitute a e<<,~..breach. 11.7 Payment of Fees. In the event of a dispute arising under this Agreement, the :wailing party shall be entitled to recover reasonable attorneys fees and costs, provided that if a ty prevails only in part the court shall award fees and costs in accordance with the relative ;cess of each party. 11.8 Signature in Counterparts. This Agreement may be signed in counterparts, each which shall be deemed to be a fully-executed original. 11.9 Signature by Facsimile. An original signature transmitted by facsimile shall be emed to be original for purposes of this Agreement. 11.10 Assignment. No party to this Agreement shall assign such party's rights or duties reunder without the prior written consent of the other parties. 11.11 No Third Party Beneficiaries. Except as otherwise specifically provided in this . ;reement, this Agreement is made for the sole benefit of the parties. No other persons shall qct ?N 163023 have any rights or remedies by reason of this Agreement against any of the parties or shall be considered to be third party beneficiaries of this Agreement in any way. 11.12 Binding Effect. This Agreement shall. inure to the benefit of the respective heirs, legal representatives and permitted assigns of each party, and shall be binding upon the heirs, legal representatives, successors and assigns of each party. 11.13 Titles and Captions. All article, section and paragraph titles and captions contained in this Agreement are for convenience only and are not deemed a part of the context hereof. 11.14 Pronouns and Plurals. All pronouns and any variations thereof are deemed to refer to the masculine, feminine, neuter, singular or plural as the identity of the person or persons may require. , 11.15. Estoppel Certificate. Each party shall, within ten (10) days after written request by another party, deliver to the requesting party a certificate stating, to the requesting party's knowledge, that (i) this Agreement is in full force and effect, (ii) this Agreement has not been modified except by any instrument or instruments identified in the certificate, and (ii) there is no default hereunder by any person, or if there is a default, the nature and extent thereof. 11.16 Arbitration. Any dispute, difference, disagreement, or controversy between or among the parties hereto, arising out of or in connection with this Agreement or the interpretation of the meaning or construction of this Agreement shall be resolved by arbitration by and in accordance with the rules of the American Arbitration Association. Such arbitration ,S shall take place in Suffolk County, Massachusetts unless otherwise agreed upon by all of the ~ ,,,'_parties. Every award or determination of such arbitration shall be final and binding upon all of . t the parties. There shall be no appeal from such award or determination, and judgment thereon . may be entered in any court of competent jurisdiction. [Remainder of page intentionally left blank] 4J (7,S, 163023 IN WITNESS WBEREOF, the parties have executed this Agreement as of the date first written above. The Boland Gro p III, L.L.C. 11 By Jamt.Bolanj, anaging Member / James I~Boland- ~ / _ I r ofiled docs\B0262\1\SMI\OperatingAgreemenfrheBotandGroupIII.81505.doc (162360 ) L, j, I-L(P 163023 anel S.. Boland N O ' SCHEDULE A PROMISSORY NOTE $ [Date] 1. Payment Obligation. For value received, the undersigned, (the "Payor") hereby promise to pay to the order of (the "Payee"), the principal amount of $ plus interest at an annual rate of Such amount shall be paid in equal annual installments of $ with the first such payment due one (1) year after the date of this Note. 2. Source of Obligation. This Note arises from the purchase of the Payee's interest in the Payor pursuant to the Agreement by and among the Payor and its Members captioned "Operating Agreement". Prepayment. The Payor shall have the right to prepay this Note in whole or in part at any r time without penalty or notice. Prepayments shall first be applied to interest due and then to the remaining installments of principal in the order of the most remote maturity, so as to reduce the outstanding amount owed but not reduce the amount of the regular monthly payments. r, .t 4. Default. The Payor shall be in default upon the occurrence of any of the following: 1. Failure of the Payor to make any payment of principal or interest when due after the Payee has given the Payor notice of the delinquency, and said delinquency continues for fifteen (15) days after the giving of such notice; 2. Application for or consent to the appointment of a receiver, trustee or liquidator by the Payor for its assets; 3. Admission in writing by the Payor of its inability pay debts as they mature; 4. The making of a general assignment for the benefit of creditors by the Payor; 5. Adjudication that the Payor is bankrupt or insolvent; 6. Filing by the Payor of (A) a voluntary petition in bankruptcy; or (B) a petition or an answer seeking reorganization or an arrangement with creditors, or to take advantage of any insolvency, readjustment of loan, dissolution or liquidation law or statute; or (C) an answer admitting the material allegations of a petition filed against the Payor in any proceeding under any such law; 163023 3 0 7. The entering of an order, judgment or decree, without the application, approval or consent of the Payor by any court of competent jurisdiction, appointing a receiver, trustee or liquidator for the Payor, if such order, judgment or decree shall continue unstayed and in effect for a period of sixty (60) days; or 5. Consequences of Default. In the event of a default by the Payor, the Payee may declare all principal and interest immediately due and payable. The Payor shall, in addition to other amounts payable under this Note, pay to the Payee all of the Payee's reasonable costs of collection, including reasonable attorneys' fees. 6. Waivers; Nature of Liability. The Payor hereby waives presentment for payment, demand, notice of dishonor, protest and notice of protest of this Note and all other notices in connection with delivery, acceptance, performance, default or enforcement of the payment of this Note. Liability hereunder shall be unconditional and shall not be affected in any manner by any indulgence, extension of time, renewal, waiver, or modification consented to by the Payee. If there is more than one Payor, the liability of each Payor shall be joint and several. 7. Place of Payment; Notices. Payments due under this Note and notices to the Payee shall be directed to the Payee at . Notices to the Payor shall be directed to the Payor at . A11 payments and notices shall be deemed, made on the day they, are hand delivered AGAINST receipt or mailed certified mail, return receipt requested. IN WITNESS WHEREOF, the Payor has executed this Note on the date first written above. Nd 163023 01A N-N-aW n a ,U cy0jaa~~~y4y e William Francis Galvin Secretary of the Commonwealth October 24, 2005 TO WHOM IT MAY CONCERN: I hereby certify that a certificate of organization of a Limited Liability Company was filed in this office by THE BOLAND GROUP, III, L.L.C. in accordance with the provisions of Massachusetts General Laws Chapter 156C on August 11, 2005. I further certify that said Limited Liability Company has filed all annual reports due and paid all fees with respect to such reports; that said Limited Liability Company has not filed a certificate of cancellation or withdrawal; and that, said Limited Liability Company is in good standing with this office. I also certify that the names of all managers listed in the most recent filing are: JAMES L. BOLAND I further certify, the names of all persons authorized to execute documents filed with this office and listed in the most recent filing are: JAMES L. BOLAND The names of all persons authorized to act with respect to real property listed in the most recent filing are: NONE In testimony of which, I have heretuito affixed the Great Seal of the Commonwealth on the date first above written. Secretary of the Commonwealth Processed By:TAA t Y F. O ' Town of Reading ' e 16 Lowell Street Reading, *MA 01867-2686 16,9+1NCOR~~4 FAX: (781) 942.9071 Email: townmanager&l.reading.ma.us October 28, 2005 Fuddruckers Attn: Jinn Boland P.O. Box 5599 Gloucester, MA 01930 Dear Mr. Boland: TOWN MANAGER (781) 942.6843 We received your application for licenses for automatic amusement devices. Please see the attached section of the policies for the Board of Selectmen outlining the process for consideration of this matter. I have scheduled time on the Selectmen's December 6, 2005 agenda for a hearing on this matter. The Board of Selectmen will decide at the hearing whether or not to grant the licenses. Closer to the hearing date, we will establish the time for the hearing and let you.know. You will need to be present to make a presentation. We will need a copy of the plan as soon as possible showing the layout of the restaurant and where you propose to put the automatic amusement devices. i ere`y, / Peter 1. -ILbleikner Town Manager PIH/ps `le I t Section 3.8 - Licenses for Automatic Amusement Devices. Chapter 140, Sections 177A of the Laws of the Commonwealth, provide for the licensing of "Automatic Amusement Devices." The Board of Selectmen as Licensing Authority is charged with the responsibility of issuing these licenses, determining that the licensee is a proper person to engage in the business and that there is a suitable place of business. The following rules and regulations are hereby adopted to guide the Board of Selectmen in reviewing and ruling upon applications for Licenses for Automatic Amusement 'Devices. Automatic Amusement Devices include those that are coin or otherwise operated, as well as those that are free for play: 1. Each application will be dealt with on a case by case basis. 2. Licenses for Amusement Devices other than clubs will be subject to a hearing by the Board of Selectmen. . 3. Automatic Amusement Devices licensed under this policy shall be so installed on the premises so as to be in open view at all times while in operation, and shall at all times be available for inspection. 4. No person keeping or offering 1or operation or allowing to be kept for operation any automatic amusement device licensed under these policies shall permit the automatic amusement device to be used for gambling. A device that rewards the player with free play on that machine shall not be considered to be gambling. 5. Prior to the issuance of a License for Automatic Amusement Devices, the Board may require a review.by the Police Department and- the. Building/Zoning Inspection Division, and proof that all necessary approvals, permits, and other licenses needed to operate have been issued. Revised 5-25-04 3:23 y-e 2, r--F---- %- --vr ww6%JWL► A�e4 6 / a - 9 (far -- 0/ TOWN OF READING COMMONWEALTH OF MASSACHUSETTS APPLICATION FOR LICENSE AUTOMATIC AMUSEMENT DEVICES To the Board of Selectmen: io�o 2005 The undersigned hereby applies for a License in accordance with the provisions of the Statues relating thereto T`tr� Gac..,��u0 G�IouP 3 (FuR name of perms, firm or corporadon maldng applicatlon) u.1 i /�i . �.,i STAVE CLEARLY PURPOSE FOR WHICH LICENSE 13 REQUESTED GIVE LOCATION BY STREET AND NUMBER In said Town of Reading, in accordance with the Rules and Regulations made under authority of said Statutes. I certify under the pendAi es of perjury that L to my best'knowledge and belief, have fi all state tax returns and paid ail a es required under law. or Corporate By Sotuu seellrlty 9 (VoleamrY) or Federal Identffication Number This license will not be issued unless this certification clause is signed by the applicant. Your social security number will be famished to the Massachusetts Department of Revenue to determine whether you have met tax filing or tax payment obligations. Licensees w4q fail to correct their non -filing or delinquency.will be subject to license suspension or revocation. uest is made under the authority of Mass. G.L. c. 62C, s. 49A. n id Fee Received: 00 0 8016 KV [Z 130 SK Signature of Applicant Current Mailing Address vcPSwQ! /v h-: 0(�30 q9--� �1�1 Telephone Na. YC3 Policv establishine "an ad hoc Committee to review the development of a hospital or like medical facility to be funded by the Hospital Trusts" (committee) There is hereby established a seven (7) member ad hoc Committee to review the development of a hospital or like medical facility to be funded by the Hospital Trusts, and to make recommendations to the Board of Selectmen on the feasibility of such a project. The terms of the ad hoc committee shall expire on September 30, 2005, unless extended by the Board of Selectmen. Beginning in 1925, 3 residents of Reading bequeathed funds to the Town through the so- called Hospital Trust Funds for the construction of a hospital in Reading. The initial bequests have been invested by the Commissioners of Trust Funds and have grown to approximately $3.5 million dollars. The initial bequests and the subsequent cy pres agreement have allowed portions of the income from the trust funds to be spent on medical care for the needy. Currently funds are spent on transportation to medical facilities, and on home health care and related services under the so-called "Reading Response" program. The Trust Fund Commissioners have suggested that there may be an opportunity to meet the original intent of the Hospital Trust Funds, by the development of an urgent care facility, perhaps with a surgi-center and even medical offices (facility). The Board of Selectmen wishes to explore this possibility, and determine whether: 1. There is a need for and demand for such a facility in Reading 2. Whether such a facility would be consistent with the terms of the bequests 3. If there is a question as to the consistency, to determine what process may be appropriate to address the consistency issue (additional cy pres agreement) 4. Whether such a facility can be developed in Reading and would be consistent with community development and other goals of the community. 5. What process would be proper and appropriate to solicit proposals for the development of such a facility 6. What kind of controls may be placed on such a facility short term and long term to ensure that the interests of the 3 donors continue to be met. In selecting the Committee membership of 7 members, the Board of Selectmen shall appoint all members and shall attempt to fill the positions as follows: ➢ One member from the Board of Selectmen; ➢ One member of the Commission of Trust Funds recommended by the Commissioners of Trust Funds; ➢ One member of the FINCOM recommended by the FINCOM;; ➢ One member from the Board of Health recommended by the Board of Health; ➢ One member from the CPDC recommended by the CPDC; ➢ Two residents of the community who do not represent the above groups, and who have broad experience in community affairs and/or expertise in finance, construction and development, or other areas of expertise which, in the opinion of the Board would be helpful in meeting the ad hoc committee's mission. The mission of the "ad hoc Committee to review the development of a hospital or like medical facility to be funded by the Hospital Trusts " is to advise the Board of Selectmen on what, if any, options exist at this time to meet the intent of the donors to the Hospital Trusts to develop and construct a hospital or similar medical facility in the Town of Reading. The Committee will: 1. Develop a work plan and schedule for accomplishing the Mission of the ad hoc committee, and review it with the Board of Selectmen, including key decision points by the Board of Selectmen; w`/ 2. Become thoroughly familiar with the wills by which the donors bequeathed money to the Town for the development of a hospital in Reading; 3. Become thoroughly familiar with the operation of the cy pres agreement which currently governs the use of the Hospital Trust Funds; 4. Determine the long term economic viability of development of a facility in Reading; 5. Determine whether such a facility, if feasible, would meet the letter and intent of the bequests which have funded the Hospital Trust Funds; 6. If an evaluation determines that a facility is feasible, and is not consistent with the intent of the donors to the Hospital Trusts, determine the likelihood and feasibility of a fintber cy pres agreement or other mechanism to allow the Hospital Trust Funds to be used for such a purpose; 7. Determine the overall costs of development of such a facility; and whether all or a portion of the Hospital Trusts would be required to make such a facility feasible; 8. Reach out to Town Boards, Committees, and Commissions; Town staff, the public at large; and the business community, to determine what community goals might be enhanced by the development of such a facility. As part of this process, determine what if any linkages to the community should be included as part of such a facility and it's operation; 9. As part of the study, determine what if any effects the use of the Hospital Trust to build a facility would have on the provision of services currently paid by the hospital trusts; 10. If such a facility is feasible, and requires the use of some or all of the Hospital Trusts, evaluate alternative means of ensuring that on an initial and ongoing basis the facility continues to meet those community goals and the intent of the bequests; and recommend options that would return to the community the assets or similar value in the event that such a facility fails; 11. If such a facility appears to be feasible, review the process as required by state law or otherwise, to move forward with securing a partner to develop such a facility, including action by the Board of Selectmen, Town Meeting, Commissioners of Trust Funds, bidding, etc. Staff will be assigned by the Town Manager to work with the Committee. The ad hoc Committee to review the development of a hospital or like medical facility to be funded by the Hospital Trusts will be considered to be part of the Department of Community Services for Administrative purposes. The services of Town Counsel, and other expertise will be available through the Town Manager. The ad hoc committee will make a fmal report to the Board of Selectmen no later than September 30, 2005, except as the Board of Selectmen may extend that date. Adopted 8-24-04 yFv Page 1 of 1 Hechenbleikner, Peter From: Camille Anthony [canthony@ftmc.net] Sent: Monday, December 12, 2005 2:38 PM To: 'JOHN FERRICK; Reading - Selectmen Subject: RE: AddisonWesley Property Dear John: A developer has approached the Town about changing the zoning for the Addison Wesley property so a retail center could be built. In order to change zoning on any property, town meeting has to approve the change by a two-thirds vote. I would suggest that you stay very involved in the process as it winds its way through CPDC and Town Meeting. The Selectmen can comment on the project especially with regard to the appropriateness of suggested road improvements. Otherwise the board has no authority to approve or disapprove, but can offer its input as to the appropriateness of the proposed development. Camille Anthony -----Original Message----- From: JOHN FERRICK [mailto:j_pferrick@msn.com] Sent: Monday, December 12, 2005 1:41 PM To: selectmen@ci.reading.ma.us Subject: AddisonWesley Property I have been a resident of Reading for over 32 years. I know things change over time and change is good, but it seems that in the past few years some very large mistakes have taken place in Reading. Namely the development on West Street. All I can think of when I pass is a high priced "Ghetto". Now you want to develop the Addison Wesley property. What are you doing to our Town? See you on January 17, 2005 12/12/2005 Page 1 of 1 Hechenblefter, Peter From: Alicia.Sasser@bos.frb.org Sent: Wednesday, December 07, 2005 11:26 AM To: Reading - Selectmen Subject: Development of the Addison Wesley Property To Whom it May Concern: I am writing to express by opposition to the proposed rezoning and development of the Addison-Wesley property in Reading. I strongly feel that Reading does not need another retail center (even an upscale "lifestyle center") and that such a development would significantly increase traffic congestion and impinge on the quality of life for residents in the abutting neighborhoods. I chose Reading as my home three years ago because of its residential feel and town center focus. I feel that these attributes would be greatly diminished by the proposed retail center. This type of development, in addition to the Jordan's furniture / Home Depot complex, would change Reading's reputation from that of a small quiet community with great schools to a shopping town with lots of traffic and strip-malls like Stoneham or Wilmington. In addition, the creation of an additional retail center will further reduce the demand for local businesses in the center of town. The bottom line is that although economic development is a worthwhile endeavor, in order to be successful, these projects must be sensitive to community character and undertaken in coordination with other community development goals. For example, rather than creating another retail center, perhaps a better strategy would be to expand retail shopping in the downtown and around the train station. I would appreciate it if you could send me a copy of the impact study for the proposed development to my home address below. Thank you for your time and attention in this matter. Alicia Sasser 47 Winthrop Avenue Reading MA 781-779-1352 Alicia C. Sasser, Ph. D. Economist New England Public Policy Center Federal Reserve Bank of Boston alicia.sasser@bos.frb.org 617-973-3413 (phone) 617-973-3409 (fax) 12/9/2005 yi Z Hechenblefter, Peter From: Jay Lenox glenox@interactiveprint.com] Sent: Wednesday, December 07, 2005 10:07 AM To: Reading - Selectmen Subject: Traffic / Addison Wesley Reading Board of Selectmen, Thank you for spending time on the Addison Wesley project last night. I am very concerned about the lack of information provided by John Diaz. I understand John was the messenger, but he was unable to answer the simplest traffic questions. It is my understanding John was parroting back the traffic information collected by the applicant. I believe the reason John did not have the Saturday and Sunday traffic figures available is the applicant did not want him to have them. John did not mention the impact and frequency of delivery trucks. Please tell me how much the Town is spending for John's services. I would hope John's company does not get paid until all the requested information is collected and presented to your satisfaction. It is crazy to think of adding 12,000+ cars to the West side of Reading's streets everyday. The whole thing just doesn't smell right. Is this your vision for our Town?? Has the Board been advised by the Police and Fire departments how much impact 12,000 extra cars going through one of the busiest intersections every day in Reading will effect them? If/when there is an accident on Jacobs Way, traffic will back-up through the intersection, onto Main Street and out to Route 128. I think it would be a great service for the Board to make public the list of Reading residents on the payroll of the applicant. Many residents may be sold the concept by neighbors that have a financial interest in the development. Please respond at your earliest convenience. Thank you. Jay Lenox 10 Sylvan Road C - 781-953-4251 1 y;3 Page 1 of 1 Hechenbleikner, Peter From: Gina DiRocco [gcdirocco@comcast.net] Sent: Wednesday, December 07, 2005 9:14 AM To: Reading - Selectmen Subject: Addison Wesley Site I would like to express my concern over a shopping center at the Addison Wesley site. I am not in favor of this type of use in that area. I feel that it would significantly detract from the downtown and would cause undue stress on Reading's roads and neighborhoods. I respectfully request that you consider the overall picture and whether this plaza will truly help or hurt Reading. I feel that it will hurt Reading and would be very disappointed if you, our leaders, decide that it is a good idea. Sincerely, Gina DiRocco Knollwood Road (tie It 12/9/2005 Page 1 of 1 Hechenblelkner, Peter From: cmr0626@aol.com Sent: Wednesday, December 07, 2005 8:16 AM To: Reading - Selectmen Subject: Shopping Plaza at Addison-Wesley site To Whom It May Concern, I have some concerns about the proposed shopping plaza at the Addison-Wesley site. I live on Hopkins St. During the presidential election, voting was there and traffic was at a stand still both on rt 28 (Main St.) and on Hopkins Street. I could not get out of my driveway and had to walk to vote. I want a guarantee that emergency vehicles will be able to get to my house if needed. Are you planning on turning Hopkins and South Streets into one ways? Traffic is one problem but noise and pollution goes along with traffic and these problems will cause my property value to go down. I am not confident that widening Main St. will solve the problem. We aleady have bottle neck at the Main St./South ST. light when the traffic on Rt 128 is heavy. Cocerned Citizen Carolynn DiCostanzo 4a S 12/9/2005 Page 1 of 1 Hechenbleikner, Peter From: RBHolt85@aol.com Sent: Wednesday, December 07, 2005 12:57 AM To: Reading - Selectmen Cc: PatrickNatale@hou.state.ma.us Subject: Addison-Wesley Property, June traffic statistics omit college commuters Hello, I just finished watching the meeting tonight and I have a few concerns that I hope you could address. John, the traffic consultant, stated that traffic numbers were obtained in June because June has numbers 20% above average. I question whether or not that is accurate. From my own experience, traffic on 128/93 going into Boston is significantly reduced from June through August because of the decrease in college commuters. Since you are studying this from both a local and regional standpoint, I would like to see traffic studies done in February (after winter break/before spring break) and for the retail peak in December. My other concern is whether the surrounding neighborhoods would experience a higher crime rate/accident rate with the addition of a retail area such as this. While I realize this is not a question that needs to be answered immediately, I would like to hear from the Reading Police regarding impacts from the Home Depot/Jordans development and from the police in other towns that have a similar retail center. While I am not entirely against this project, it does seem like the town is trying to fit a square peg in a round hole. Too much traffic too many retail spots not enough space. On another note, I was very disappointed that the majority of selectmen voted to allow Jordan's to open the IMAX theater on Christmas when they have shown no real cooperation toward addressing the lighting issue, both for the surrounding neighborhood and how it impedes upon the view of Lake Quannipowitt. In truth, it makes me a bit uneasy going forward with the Addison-Wesley project since you so easily chose big business over the residents you represent. When this issue comes up again next year, I hope you will vote "No" and support the residents in that neighborhood. Thank you for your time and consideration. Sincerely, Rhonda Holt 46 Fairview Ave. Y. 6 12/9/2005 Y -I-Y,- D 0 C Q VIDEO G/ m_ HIGH TOP TABLE ° SEATING AREA i !r U) U o + !V t 4_2° V-5" 1 S_I° i IL f HIGH TOP TABLESm I SEATING 150 m SEATING AREA ~r h ` a h0 ' BAKED Y i I❑ gg600) 88 95'--1" _ I . V-8° POs t F L F c "OFFIU Board of Selectmen Meeting November 8, 2005 For ease of archiving, the order that items appear in these Minutes reflects the order in which the items appeared on the agenda for that meeting, and are not necessarily the order in which any item was taken up by the Board. The meeting convened at 7:00 p.m. in the Selectmen's Meeting Room, 16 Lowell Street, Reading, Massachusetts. Present were Chairman Camille Anthony, Vice Chairman Richard Schubert (arrived late), Secretary Joseph Duffy, Selectmen James Bonazoli and Ben Tafoya, Elder/Human Services Administrator Dawn Folopoulos, Assessor Dave Billard, Superintendent of Schools Pat Schettini, Police Chief Jim Cormier, Health Administrator Jane Fiore, Public Works Director Ted McIntire, Water Treatment Plant Supervisor Peter Tassi, Assistant Town Manager Bob LeLacheur, Town Manager Peter Hechenbleikner, Paula Schena and the following list of interested parties: John Wood, Ann Marie Bourque, Paula Kopel, Lyn Whyte, Bob Nordstrand, Tom Ryan, Ralph Colorusso, Rob Spadafora, Lisa Gibbs, Elaine Webb, Carl McFadden, Pete Dahl, Gary Nihan, Tom Gardner, Dan Howland, Steve Oston, Richard Moore, Stephen Crook. Reports and Comments Selectmen's Liaison Reports and Comments - Selectman Ben Tafoya noted that Congressman Tierney will have a Town Hall Meeting in Reading this Saturday at the Senior Center. He attended the CPDC/Master Plan Meeting, and there is still opportunity to give input by turning in the survey. CPDC reacted to the article in the Globe regarding Jordan's lighting. CPDC has issues regarding being able to follow up on these things, and they are confused with the power of Town staff. They suggest a joint meeting with the Board of Selectmen. The Town Manager suggested that Chairman Camille Anthony and Selectman Ben Tafoya attend a CPDC Meeting to clarify. Selectman James Bonazoli noted that the Town is still looking for a replacement on the Aquatics Advisory Committee. Chairman Camille Anthony noted that she met with the Town Manager, Jane Fiore and Holly Stump regarding dangerous dogs. Public Comment - A resident from 92 Grove Street noted that she found a lost dog and was told by the Police to put the dog back because we don't have the facilities to keep lost dogs. She requested that the Town have some kind of procedures in place for when people find lost dogs. Selectman James Bonazoli asked what the Town's legal responsibility is regarding lost dogs. The Town Manager will follow up on this matter. 'T'own Manager's Report The Town Manager gave the following report: ♦ We had a problem with street line painting last week. The lines will be re-done in the Spring at the contractor's expense. sad ' Board of Selectmen Meeting - November 8. 2005 - Paae 2, ♦ Town Meeting begins November 14th, and will go Mondays and Thursdays until completed. ♦ Flu Clinics are scheduled on November 14th and November 16th. ♦ The American Flag on the Common is flying again. ♦ Veterans' Day is Friday - November 11th. ♦ Your packet contains a letter from CPDC re: Sally Hoyt's proposed changes in zoning. I discussed this with Ms. Hoyt, and she felt that she would not pursue the matter further. ♦ The "original" Sanborn Lane trench has been patched for the Winter. ♦ There is a Public Official liability course through MIIA tomorrow night if anyone can attend it. The applicant of the Archstone Development has requested approval to remove the large maple tree on West Street because of site distance issues. You've received correspondence on this matter. Curbs are being installed on Melbourne this week. ♦ The Garden Club's Memory Tree Program is on December 4th, and they have requested a member of the Board of Selectmen to participate. Discussion/Action Items Report from Nurse Advocacv Committee - Elder/Human Services Administrator Dawn Folopoulos, committee members Ann Marie Bourque, Paula Kopel and Lyn Whyte were present. Ann Marie Bourque noted that the Committee met six times. The Committee was formed by an instructional motion of Town Meeting to review the need for a Nurse Advocate. The role of the Nurse Advocate would be to help people age in place and assist individuals with health concerns. The Committee spoke with surrounding towns. Winchester and Arlington have a part time Nurse Advocate. Ms. Bourque noted that the Committee is requesting an extension by the Board of Selectmen to explore funding. Chairman Camille Anthony asked if a needs assessment needs to be done. Ms. Bourque noted that the Committee is looking at doing a survey of residents over 65. The Town Manager noted that the Council on Aging did a survey around three years ago. Chairman Anthony noted that there are many organizations providing services, and the Town needs to know what services are out there and if the frail elderly are being taken care of. Selectman James Bonazoli noted that the Nurse Advocate would handle the medical portion. The Visiting Nurses Association and Mystic Valley don't do follow up. Ms. Bourque noted that those services are also income eligible - everyone else is missed. Chairman Camille Anthony noted that we also need to know what the liability is. A motion by Tafova seconded by Duffv to extend the life and membership of the Nurse Advocate Task Force to Mate 1.2006 was aonroved by a vote of 4-0-0. Hearing - Tax Classification - The Secretary read the hearing notice. s,~z. Board of Selectmen Meetine - November 8. 2005 - Paae 3 Assessor Dave Billard, Board of Assessors Members Bob Nordstrand, Tom Ryan and Ralph Colorusso were present. Tom Ryan presented Chairman Camille Anthony with a birthday calve. Dave Billard reviewed the different classes of property in the Town including residential, open space, commercial, industrial and personal property. A motion by Bonazoli seconded by Schubert to close the hearing on setting the tax rate for Fiscal Year 2006 was approved by a vote of 5-0-0. A motion by Bonazoli seconded by Schubert to adopt a residential factor of "1" for Fiscal Year 2006 was approved by a vote of 5-0-0. A motion buv Bonazoli seconded by Schubert to not grant an open space discount for Fiscal vear 2006 was approved by a vote of 5-0-0. A motion by Bonazoli seconded by Schubert to not grant a residential exemption for Fiscal Year 2006 was approved by a vote of 5-0-0. A motion by Bonazoli seconded by Schubert to not grant a commercial exemption for Fiscal Year 2006 was approved by a vote of 5-0-0. Discussion with School Committee on Substance Abuse Issues - Presentation of Health Risk Behavior Survev - The School Committee joined the Board of Selectmen at 8:05 p.m. Present were School Committee Members Rob Spadafora, Lisa Gibbs, Elaine Webb, Carl McFadden, Pete Dahl, Superintendent of Schools Pat Schettini, Police Chief Jim Cormier, Health Administrator Jane Fiore, and members from the Substance Abuse Prevention Advisory Committee. Pat Schettini noted that the Northeast Center did the survey, and Mr. Ryan was present to give two reports - one on the High School and one on the middle school. Mr. Ryan noted that the research shows the answers are reliable and truthful. The survey was confidential and anonymous. Software was used to scan for inaccuracies. There was a 63% response rate and the survey was done in the Spring so the seniors were not present. Carl McFadden noted that 24% of the students had been in a fight in the past 12 months and 8% of those were in school. Mr. Ryan indicated that the safest place for children is in school. Pat Schettini noted that the number of fights at school is less than outside of school. Mr. Ryan noted that males get into more fights. Suicide thinking is lower than the State average, but is still at 11%. Seat belt use is good but in the past 30 days, 25% of the students had rode with a person who had been drinking. Mr. Ryan noted that 27% had gambled with the lottery and 28% play cards. Mr. Ryan reviewed the Middle School survey. He noted that tobacco use was low, 26% had used alcohol of which 14% were under 13. Marijuana use is at 8%, inhalant use 9%, cocaine use y~.3 Board of Selectmen Meeting - November 8. 2005 - Page 4 4%. In the category of violence, 50% have been bullied. In the sex category, 4% have had sex before the age of 13, and 83% use a condom. Carl McFadden had concerns that 113 middle school children have considered suicide and 39 have attempted. He asked if the survey asked why. Mr. Ryan indicated that it did not that would be a whole different survey. Gary Nihan noted that there is a need to provide skills for coping, stress management and decision malting. Pete Dahl noted that it is pretty clear that bullying is prominent, and that the schools have a policy on bullying. Pat Schettini noted that these are community based issues. The bullying can be addressed. He noted that there is a need to identify issues for the community to address. He also noted that the vast majority of students do not participate in bad behavior. The School Committee adjourned at 9:20 p.m. George Hines noted that he sent an e-mail to the Board of Selectmen last month regarding drug problems in Reading. He noted that the schools are safe there is low drug and alcohol use in schools. He requested that the Board of Selectmen move ahead to find some answers for the community. Selectman James Bonazoli thanked George Hines for speaking up. He noted that the recent tragedies were young adults out of school that's where the coping skills come into play. George Hines noted that the approach needs to be changed. He feels that this is an epidemic and noted that if there were five avian flu deaths, the community would be screaming. Discussion - Siting of Water Treatment Plant - Public Works Director Ted McIntire, Water Treatment Plant Supervisor Peter Tassi, Water Treatment Plant employees Tom Gardner and Dan Howland, WSSWAC Members John Wood, Steve Oston, Richard Moore and Stephen Crook were present. The Town Manager noted that in 1999, the WSSWAC recommended purchasing supplemental water from the MWRA and renovating/replacing the Water Treatment Plant. A new Water Treatment Plant was then designed. The location was problematic due to environmental reasons. The estimated cost of a new Water Treatment Plant has increased from $13 million to $23 million. Ted McIntire noted that they were looping at four sites in August, reduced that to three sites and are now down to two possible sites for a new Water Treatment Plant. The existing Water Treatment Plant site is previously disturbed, has proximity to the infrastructure, will take one year to implement and the Town keeps local control. The cons are that we would have to purchase MWRA water for two and one half years, it is the most expensive alternative, and two staff would be kept at the site with a trailer and lab. S-a,`~ Board of Selectmen Meetine - November 8. 2005 - Pase 5 Ted McIntire noted that the compost area is a previously disturbed site, is the easiest to redesign, will need less site work and the Town keeps local control. The cons are that the Town will have to replace the existing operation. Ted McIntire noted that with full MWRA, there will be minor infrastructure improvements and the water source is less vulnerable. The cons are that it is prohibited by the Interbasin Transfer Act, and there is loss of local control and loss of redundancy. Ted McIntire noted that we have spent $1.7 million now and it will cost $340,000 to complete the engineering. The construction cost will be approximately $23 million. He noted that he has reviewed the time schedule and construction could begin in July 2006. Selectman Ben Tafoya asked about vulnerability, and Ted McIntire noted that we are vulnerable to gas spills and there is an issue with AGFA. The Quabin Reservoir is less vulnerable. Chairman Camille Anthony noted that we have three years to address the safe drinking water regulations, and asked what the capital costs will be. Ted McIntire noted that the facility will last over 50 years and the treatment processes will change over time. Chairman Anthony asked if there were concerns regarding security at the Compost Center site, and Ted McIntire noted that there was not, that it would be fenced off. Vice Chairman Richard Schubert noted that we need a sense of the cost to relocate the Compost Center. Stephen Crook, Chairman of the WSSWAC, noted that the WSSWAC voted to recommend building a new Water Treatment Plant versus full MWRA mainly due to prohibited by State law and we would lose local control. They discussed building on the old compost site, and the ranking of the options are: (1) old compost site, (2) current compost site, (3) existing site. Richard Moore noted that the Town can work with the abutters. He also noted that MWRA costs will be going up. Chairman Camille Anthony asked if our registration will be reduced. Gail Wood noted that when you have registration, they are not reduced. Permits can be reduced. She also noted that we have never exceeded our registration. Richard Moore noted that the MWRA is offering a five year contract and we don't know what the process will be when five years is up. The Town is not an original user of the MWRA so we will be the first to be cut. John Wood had concerns that if we give up the local system, then we will lose it forever. Bob LeLacheur noted that full MWRA will take five years to get permission. He noted that the Town could build a new Water Treatment Plant and use no MWRA water, go with MWRA 100%, or combine the two and build a new Water Treatment Plant or supplemental MWRA. He S~ s Board of Selectmen Meeting -November 8. 2005 - Page 6 also noted that he received a memo yesterday that the MWRA will increase sharply over the next five years. Selectman Ben Tafoya noted that the Board needs feedback from the MWRA, needs to know the political perspective in getting approval from the State, and get feedback from the Ipswich River Association. The Town Manager noted that if we stay with the Water Treatment Plant and MWRA, then we will use the maximum every year. It will be faster to implement, the cost is easier to predict and we would be able to keep good and loyal staff. The Town Manager noted that if we go with the full MWRA, we will always have water restrictions, the impact on the Ipswich River will be eliminated, the vulnerability is less in a larger system and we won't have to address the Safe Water Drinking Act. The Town Manager also noted that 60% of the MWRA costs are debt right now. Either way, the Town needs to maintain a distribution system and leak detection system. Chairman Camille Anthony noted that the Board will meet on November 29, 2005 regarding just water. Report fiom Health Insurance Task Force - Selectman Ben Tafoya noted that the MMA sent out an Action Notice regarding health care, and they were all issues that we have dealt with. The Town is in good shape with the 70/30 split. He also noted that some towns can't get their employees to take the HMO. The legislature sets the split for the State and they went back to 80/20. A motion by Schubert seconded by Duffv to adiourn the meeting of November 8. 2005 at 31:28 mm. was aunroved by a vote of 5-0-0. Respectfully submitted, Secretary Sad Board of Selectmen Meeting November 15, 2005 For ease of archiving, the order that items appear in these Minutes reflects the order in which the items appeared on the agenda for that meeting, and are not necessarily the order in which any item was taken up by the Board. The meeting convened at 7:00 p.m. in the Selectmen's Meeting Room, 16 Lowell Street, Reading, Massachusetts. Present were Vice Chairman Richard Schubert, Secretary Joseph Duffy, Selectmen James Bonazoli and Ben Tafoya, Assistant Town Manager Bob LeLacheur, Town Manager Peter Hechenbleilcner, Paula Schena and the following list of interested parties: Linda Anderson, Scott Wantman, Janice and Melanie Jones, Constance Larozza, Christine DiNardo, John Fader Sr., Jim Queeney, Julie Talbot, Kathy Vaccaro, Naomi Kaufman, Donnan Burner, Florence and Don Wood, Marianne Zwicker, Philip Maher, Robert Smith, Stephen Herrick, Robert Prince, Karen German, Newell Bugbee, Allison DaSilva, Henry Barool, John Stosez, Peter Dahl, Susan DiGiovanni, Patricia and Thomas Fitzgerald, Marquerite Bosnian, Jennifer Martin, John Diaz. Reports and Comments Selectmen's Liaison Reports and Comments - Selectman Ben Tafoya noted that he attended a meeting of the Hospital Development Committee last week. In response to George Hines' request for a summit meeting, he developed an agenda and outcomes to use as a guide. Selectman James Bonazoli noted that the Solid Waste Advisory Committee is lacking in membership and wants to know if they should continue. The Town Manager noted that he will put this on the December 6, 2005 Agenda. Selectman Joseph Duffy noted that he received a phone call from a Linden Street resident requesting no rezoning. Public Comment - Town Meeting Member Janice Jones of Mt. Vernon Street was present to talk about Article 21 for the Subsequent Town Meeting. She noted that she canvassed the neighborhood and only one person knew about the rezoning. She indicated that block is a good buffer zone between the businesses and the homes. She feels that Business B on Linden Street will work its way to other neighborhoods and devalue homes. She also noted that it is okay now the way it is, but what if a building gets sold and Walgreen's or a restaurant goes in there. She noted that once is becomes Business B, nobody can stop what goes in there. She requested that the Article be delayed and that the residents be notified so they can give their input. The Town Manager noted that the genesis was when the house burned down on Sanborn Street. The owner had an inquiry to purchase the property for parking. Janice Jones noted that Linden Street residents will sell if commercial goes in across the street. s-~l Board of Selectmen Meetina - November 15. 2005 - Paae 2 Selectman Ben Tafoya suggested waiting until there is a proposal before changing anything Kathy Vaccaro of 57 Woburn Street noted that she is opposed to the encroaching on the residential character of her neighborhood. Naomi Kaufman of 64 Woburn Street agreed with Ms. Vaccaro. She is not in support of changing one or any parcels. Julie Talbot of 75 Linden Street suggested that the Town look more at improving the business properties. Melanie Jones of 22 Mt. Vernon Street noted that the MF Charles building is vacant, and the new building at Haven and High Streets have low occupancy. If the business zone is expanded then it will hurt the occupancy. He noted that only one person received notice and people were blind sided creating mistrust. Kathy Vaccaro suggested that when letters are sent out, a map and explanation should be attached. Selectman Ben Tafoya suggested communicating to CPDC that the Board of Selectmen wants this Article tabled or postponed. A motion by Bonazoli seconded by Tafova to recommend tabling Article 21 was approved by a vote of 4-0-0. The Town Manager's Report The Town Manager gave the following report: s Line striping issue - Walnut Street and South Street. e Paving complete - Berkley, Gleason, Greenwood. ♦ Pavement to be complete by the end of the week - Summer and Willow. ♦ Curbs are installed on Melbourne. o Toys for Tots Program. ♦ Chairman needs to sign off on MSBA form. Town Meeting may be complete on Thursday. ♦ Last Flu Clinic Wednesday, November 16th at Parker Middle School - 5:00 p.m. to 7:00 p.m. - we have an adequate supply of flu vaccine. o The Garden Club's Memory Tree Program is on December 4th, and they have requested a member of the Board of Selectmen to participate. ♦ Court case re: Beacon Street 40 B project - the ZBA approval of the project is affirmed after five years of legal action. We have received and staff is evaluating additional information including legislation that appears to authorize Storm Water Management Enterprise Funds. ♦ MWRA decision on Reading's application for supplemental water - November 16th. S1z' Board of Selectmen Meetinc - November 15. 2005 - Pace 3 Personnel and Appointments Audit Committee - Vice Chairman Richard Schubert noted that former Selectman/Audit Committee member Matt Cummings was in the audience. The Board interviewed Stephen Herrick and Robert Prince for one position on the Audit Committee. Duffv moved and Bonazoli seconded to place the following names into nomination for one position on the Audit Committee with a term expiring June 30.2006: Stephen Herrick and Robert Prince. Each candidate received two votes so there being a tie. it was decided to wait until there was a full Board at the next meeting. Council on Acinc - Associate - The Board interviewed Marguerite Bosnian for one Associate position on the Council on Aging. Bonazoli moved and Duffv seconded to place the following name into nomination for one Associate position on the Council on A "n with a term expiring June 30. 2006: Marguerite Bosnian. Ms. Bosnian received four votes and was appointed. Cultural Council - Associate - The Board interviewed Jennifer Martin for one Associate position on the Cultural Council. Bonazoli moved and Duffv seconded to place the following name into nomination for one Associate position on the Cultural Council: Jennifer Martin. Ms. Martin received four, votes and was appointed. Discussion/Action Items Jordan's Annlication to Onerate the I-Max Theater on Christmas Dav - Scott Wantman, the Manager of the I-Max Theater, was present. The Town Manager noted that the operation of entertainment on Sunday on Christmas requires approval by the Board of Selectmen. The Police Chief has no problem with it. They are planning on showing Harry Porter at 2:00 p.m., and The Polar Express at 5:00 p.m. and 7:00 p.m. Vice Chairman Richard Schubert asked what time the last show will end, and Mr. Wantman indicated that it will end at 9:00 p.m. they will close up and clean up the next day. Vice Chairman Schubert asked if there was a way to assure that the lights will be off at 9:00 p.m. Mr. Wantman indicated that the lights go off when the last employee leaves. Selectman Ben Tafoya noted that he was extremely disappointed with the management's response to the article in the Globe. He is not willing to vote in favor of special permission for Jordan's. He hopes that management will be more receptive to neighbors and residents. The Town Manager noted that the Consultant's reports was sent out on Wednesday, and they did not receive it until Monday. Vice Chairman Richard Schubert suggested putting an ending time for lights out. 543 Board of Selectmen Meeting - November 15. 2005 - Paae 4 Selectman Ben Tafoya asked if anyone else is going to be open, and the Town Manager indicated not that he knew of. Selectman Joseph Duffy indicated that he was for it because they haven't been uncooperative. He suggested putting the time for the lights to be out as a condition. Selectman James Bonazoli noted that when he met with Jordan's, it was very positive. He is in favor of approving in a good faith effort to work with Jordan's regarding the lighting issues. A motion by Bonazoli seconded by Duffv to grant permission for the I-Max Theater at Jordan's. 50 Walkers Brook Drive. to be open to the public and show three movies with the, last show completed by 9:00 p.m. and all non-security lights to be off by 9:45 p.m. was approved by a vote of 3-1-0. with Tafova opposed. Aabroval of Vacating Easement - Walnut Street - The Town Manager noted that this is a request to vacate an easement. There are no utilities in the easement and the owner wants to build a pool. A motion by Bonazoli seconded by Duffv to approve the release of easement located on, land situated off of Walnut Street. which easements are shown on a plan entitled "Easement Through Private Property for Drainage. Water and Sewerage Purposes Walnut Street. Scale: 1 in. = 40 ft.. Nov.. 1967" registered with the Middlesex South Registrv District of the Land Court as Document No. 450960 was approved by a vote of 4-0-0. Addison-Weslev Traffic Presentation - John Diaz from Greenman-Pedersen, Inc. was present. Vice Chairman Richard Schubert noted that Mr. Diaz would give the Board his review of the applicant's study. The Town Manager noted that the supplemental study and comments were received yesterday. Mr. Diaz noted that the point of this review was to concentrate on the signalized intersection. The original plan was received in August and he had issues with the geometric design, the Saturday peak hour, and the one left lane and one through left lane. He also noted that the left turn issue has been resolved. There are two dedicated left turn lanes that are "protected." They have added traffic for the real estate training center. The South Street through traffic is prohibited eastbound on South Street. A delta island will be put in to prohibit southbound left turn. The intersection of South Street and Jacob Way stays the same. He noted that the signals will control the number of cars coming out and going down South Street, and that this is an existing Level B and with the improvements will maintain a Level B with Level C on Saturdays. Vice Chairman Richard Schubert asked if he factored in the peak shopping center traffic, and Mr. Diaz noted that the geometries are there to accommodate it won't be perfect but it can accommodate. 5~'~ Board of Selectmen Meetina - November 15. 2005 - Paae 5 Vice Chairman Richard Schubert asked if the distance was long enough to support, and Mr. Diaz indicated that it can be controlled. Vice Chairman Schubert also asked if there was any opportunity for pedestrian crossing, and Mr. Diaz indicated that there was not. Vice Chairman Richard Schubert asked if the grand opening and day after Thanksgiving were factored into the counts, and Mr. Diaz indicated that they are not they look at a typical day. Vice Chairman Richard Schubert asked if square footage is taken into consideration, and Mr. Diaz noted that it is and that the footage from Hingham was used. Vice Chairman Schubert also asked if those numbers were reliable, and Mr. Diaz indicated that the trip generation numbers are conservative and can be handled. Selectman Ben Tafoya asked Mr. Diaz for his credentials. He asked Mr. Diaz if he would design an intersection with a small queue as that coming off of Route 128. Mr. Diaz noted that it is not ideal but not uncommon people work with what they have. Selectman Ben Tafoya asked if he has been involved in any design or review of design less than optimal. Mr. Diaz indicated that Best Buy was a disaster. Selectman Tafoya noted that this intersection is a major way to get in and out of Town, and Election Day in 2004 was unsuccessful. Mr. Diaz noted that was with the existing design, not the new design. The Town Manager asked if this can all be done in the existing right of way, and Mr. Diaz indicated that it can. The consensus of the Board was to put this back on the December 6th Agenda when a full Board is present. Discussion on Dangerous Doas - The Town Manager noted that he met with Chairman Camille Anthony, Health Administrator Jane Fiore and Holly Stump from the North Shore Kennel Club. Ms. Stump had given them samples of bylaws and suggested using Springfield's as a model. This will identify potentially dangerous or vicious dogs, and set up a process to deal with them. It also deals with insurance issues. He suggests incorporating the leash and pick up bylaws into it. Selectman James Bonazoli indicated that he was impressed with Springfield's Ordinance especially on wild animals. The consensus of the Board was to move forward and draft a bylaw for the Annual Town Meeting. Input to CPDC re: Cul-de-Sacs - The Town Manager noted that CPDC needs the Selectmen input now regarding islands in cul-de-sacs. Staff doesn't like them because. they are difficult to plow. The Selectmen as Road Commissioners need to decide. 'e- i I Board of Selectmen Meeting - November 15. 2005 - Page 6 The Town Manager indicated that he is in favor. He noted that people get creative and it counts as pervious surface. He also noted that CPDC needs to make it clear in its decision as to who will maintain the islands. The consensus of the Board was that they were in favor of the islands in the cul-de-sacs. Discussion of Budget Process - Assistant Town Manager Bob LeLacheur noted that the Finance Committee will review the budget in six evenings between February 15th and March 22, 2006. He indicated that the Selectmen need to review the budget before then. The Town Manager noted that health insurance bids are due on January 3, 2006. Selectman Ben Tafoya noted that the critical assumptions in this budget will be health insurance and energy prices. A motion by Bonazoli seconded by Duffv to go into Executive Session for the nurnose of strategv with respect to litigation, not to come back into Open Session, was approved on a roll call vote with all four members voting in the affirmative. Respectfully submitted, Secretary sj~ yaw (PIW4 C/ LATHAM9 LATHAM & LAMOND, P.C. 643 MAIN STREET READING, MASSACHUSETTS 01867-3096 W W W. LLLLAW. C O M KENNETH C. LATHAM (1939-1996) 0. BRADLEY LATHAM* JOHN T. LAMOND SHEILAH GRIFFIN-REICHARDT JOSHUA E. LATHAM CHRISTOPHER M. 0. LATHAM *ADMITTED TO PRACTICE IN MASSACHUSETTS & NEW HAMPSHIRE Board of Selectmen Town Hall 16 Lowell Street Reading, MA 01867 TELEPHONE: (781) 944-0505 FAX: (781) 944-7079 December 5, 200;-11 This letter was previously e-maileP 0- Re: Addison-Wesley Property and WIS Development Proposed Route 28 Improvements We represent W/S Development in its proposal to create a lifestyle center at the "Addison-Wesley" property. A few months ago W/S Development participated in a joint meeting with the Community Planning and Development Commission ("CPDC") and the Board of Selectmen. The CPDC participated as it is responsible for land use planning and zoning and the Selectmen participated, as it is responsible as road commissioners, for public ways. The Selectmen were uncertain whether roadway and intersection improvements could be made that would adequately address the impact of the traffic from the proposed lifestyle center and decided to engage the services of a traffic engineer to study the proposal and report to the Board. The Town engaged as its traffic consultant, John Diaz of GPI, who is both a licensed Professional Engineer and a certified Professional Traffic Operations Engineer. The Town had apparently used his services previously for traffic review. On October 6, 2005, the Town's traffic consultant issued a preliminary review letter. As a consequence of comments in that preliminary review, W/S Development made improvements to its traffic proposal and prepared a revised (supplemental) traffic report. After having reviewed the supplemental traffic report by W/S Development, the Town's traffic consultant submitted to the Town his final report, dated November 11, 2005, which stated, in part, that "Overall we feel comfortable that the current design of the intersection will sufficiently accommodate the anticipated traffic associated with the 1 gall Addison-Wesley facility. Furthermore the modifications to the intersection will provide improvements to the safety of the intersection when compared to the current design.... Therefore, GPI would recommend that the project be accepted as a feasible project...." On November 15, 2005, the town traffic engineer, John Diaz, P.E., appeared before the Selectmen at a scheduled meeting and for more than an hour answered questions from the Selectmen about traffic and his November 11, 2005 report. At the Selectmen's meeting, in response to questions, Mr. Diaz stated the following additional facts: • The thru traffic on Route 28 (both northbound and southbound) will run through the Main/South Street intersection at an acceptable level of service, even during the peak traffic hours. That is, traffic flow into and out of the Town will not be disrupted with the potential of two dedicated through lanes in each direction. • The intersection will be safer when the improvements proposed by WS Development are made. We complement the Selectmen for having taken the extraordinary step of having had a traffic review before the rezoning process has even begun. Such scrutiny and the future scrutiny that would take place as part of rezoning and CPDC review would certainly enhance the proposal. Since the November 1 lt-' Selectmen's meeting, persons in favor of and opposed to the proposal have voiced their opinions. Both traffic and non-traffic issues have been aired that would be addressed as part of the rezoning efforts. Unfortunately, some of the statements that have been made in handouts are in error. While we do not assert any intention to mislead the public, it is important that we are all dealing with the following correct information: • Traffic Flow: 80% of the traffic to the site will come directly from and go directly back to Route 128, staying within 300 feet of Route 128. • One-Wav Streets: There is no proposal made by the proponent to make any Town street one-way. That is not necessary. • Town Control of Future Use: The Town does not lose control over the site by allowing rezoning. What goes on the site can be tightly controlled by the zoning language. Further, even if Town Meeting rezones the property, the Community Planning and Development Commission can control how the site may be used by imposing such conditions in any special permit. • Downtown: The project will not have a significant impact downtown. People who shop and dine there will continue to do so. Park Square will offer an alternative for those Reading residents who would otherwise go the Burlington Mall, as they do now. Hingham has advised the Town Manager that the Derby Street project g~~ 2 was positive, not negative to the downtown. Main Street Improvements: The proposed improvements to Route 28 will improve the safety of the intersection. The only widening of Main Street will be at its intersection with South Street and at the intersection of Routes 28 and 128. W/S Development is very aware that as this proposal continues through the rezoning process, the Town retains control. There would have to be multiple public hearings. Many town boards would review the matter before any final action could be taken. Our client is well aware of the heavy burden placed on a proponent when a two-thirds vote of Town Meeting is required for a project. We thank you for the time that you have taken on this matter. We trust that with further review of this matter, the other positive consequences of the proposal can be recognized by the Town, such as significant tax revenue (over one million dollars per year), employment opportunities and the project being a catalyst for further improvements to the south Main Street business area. Sincerely, Latham, Latham & Lamond, P.C. radley Latham 3-63 1 -11, / CgLf yaw (P" C/ LATHAM9 LATHAM & LAMOND9 P.C. 643 MAIN STREET READING, MASSACHUSETTS 01867-3096 W W W. LLLLAW. C O M KENNETH C. LATHAM (1939-1996) 0. BRADLEY LATHAM* JOHN T. LAMOND SHEILAH GRIFFIN-REICHARDT JOSHUA E. LATHAM CHRISTOPHER M. O. LATHAM *ADMITTED TO PRACTICE IN MASSACHUSETTS & NEW HAMPSHIRE Peter Hechenbleikner, Town Manager Reading Town Hall 16 Lowell Street Reading, MA 01867 RE: Addison Wesley Property Dear Peter: December 6, 2005 hJ TELEPHONE: 944-0505 FAX: (781) R4-7079 C-> 1 c>` 1`J %.n .6 Enclosed please find an article in the December 1, 2005 Hingham Journal, which might be of interest to the Board. The article reflects the benefits of the lifestyle project to Hingham and the positive impact derived from street and signal improvements made as part of that project. Sincerely, obl:pp: Latham, Latham & Lamond, P.C. O. dley Latham 8-~ I~er~y year is Street S-aa-p,-3,esft first a ?goon to Hingliam Plaza property value soars $95M By Sara Mason Ader coRRESPONDENT When the stores began open- ing at the Derby Street Shoppes last year,'town officials were expecting 'them to be success- ful. But they did not anticipate the commercial property value of the so-called "lifestyle cen- tef'would escalate $95 million. "We had estimated more like $35 million," said Ted Alexiades, town accountant, about the growth in the plaza's commercial value. "I don't think anyone expected it to be at the level it is." ; "This is a considerable increase," said Town Administrator Charles Cristello. "In a typical year, all forms of new growth including building permits and new prop- erties add up to about $35 mil- lion. This one development in the course of a few years is very significant." . The former plaza had a com- mercial value of $8 million in fiscal 2004. Hingham Plaza was built in the 1960s and was mostly empty by 2003 with the exception of a few smaller mer- chants and Building.19, which moved to Main Street in Weymouth. White's Bakery is the sole occupant to maintain its presence in the new proper- which has been transformed into a decidedly upscale loca- tion. Though the final figures have not yet been approved or released, town officials say the taxes generated by the Derby Street Shoppes will be roughly $950,000 for fiscal 2006.. This additional revenue does not mean Hingham is flush with extra cash, clarifies Town Assessor Lane Partridge. `Vne town can only spend 2.5 per- cent above last year,` according to Proposition 2-1/2." Partridge said Prop. 2-1/2, - a`state law that has been on the books for about-20 years - serves as one of-the checks:and balances that keeps tax bills in line with growth in community property values. Nonetheless, the extra cash flow definitely serves as a pos- itive development fof the town by reducing the overall tax rate. And, at the same time the retail- SEE SHOPPES, PAGE 18 W" z. Shoppers flock to Denby Sheet Shoppes on `Black FHday," the day after Thanksgiving. Derby year is Street Shopper' first a boon to Hingham FROM SHOPPES, PAGE 1 ers are adding revenue, they are not relying heavily on other town services. 'They are not sending kids to school," Partridge quips. The Hingham Police Department is the primary town resource being tapped by the Derby Street Shoppes. "Our workload has been increased by the addition of the Derby Street Shoppes," says Hingham Police Chief Steven Carlson. Most of the calls that come in from Derby Street involve shoplifting incidents, says Sgt. Michael Peraino. But because store owners are cooperating with the police to prosecute offenders, the volume of shoplifting is not as high as the police might have expected, he said. "Ibe calls for our service are up but that just comes along with the success of the shops," Sgt. Peraino said. , Meanwhile, despite an increase in the number of calls to the' police and greater traffic flow, the shops have helped to reduce the number of car accidents in the area, Chief Carlson added. As part of the property's con- struction, two traffic lights were installed at Cushing and Derby streets and turning lanes were added. These me6sures have helped to slow traffic on Derby Street, which has made it safer for drivers, Carlson said. In addition, Carlson praised the retailers and property owner S.R. Weiner & Associates for helping maintain a safe environment for customers. "Management and store owners have been very cooperative," he said. Although parking was consid- ered a major hurdle in the plan- ning phase of the shops, it has not been a problem during most of the year. Property owners con- structed a separate lot for employee parking, which has helped maximize parking spaces for consumers. "I haven't seen any evidence of parking problems," Cristello says. "Christmas will be the real test." SR Weiner is subcontracting police officers to be onsite to help direct traffic during the hol- iday crunch. This should help to prevent bottlenecks and acci- dents as parking lots get more hectic, officials say. Christina Zona of Andrew Zona Studio, which has shops at both Derby Street and Hingham Square, says the two shopping areas don't compete. "Derby Street offers a com- pletely different draw and higher foot traffic than Hingham Square," Zona said. "Our reach at Derby Street is much more broad, and we meet clients from all over Boston area, Southeastern Massachusetts, including Cape Cod. "We now offer a choice - Hingharn Square serving the , niche of north, west, east Hingham, parts of Weymouth,' Hull, Cohassel, and Scituate ' . or Derby Street which is much more accessible for south Hingham, outwards," she said. • Most of the shops at Derby Street opened in the fall of 2004: The shopping area, which is con sidered to be the area's first lifestyle center, currently features 78 retailers and has mote than . 1,000 employees, according td center manager Carolyn Kennedy. The lifestyle shopping cente>'; concept is all the rage in retailing, As opposed to a mall, lifestyle centers aim to mimic a down- town shopping experience with streets and landscaping. Because of the outdoor aspect; lifestyle centers are proliferating in warmer West Coast and Southwest climates. Despite the weather, however, Derby Street ; Shoppes have managed to draw customers throughout the past year, "We thought that after the opening last year, it would calm down dramatically after the holi- ; days but it hasn't. That place is busy year-round," Sgt. Peraino said. EP L /C ~6 5 ~omcast Zms ore -7 are u= 2i December 5, 2005 Board of Selectmen Town of Reading 16 Lowell Street Reading, MA 01867 Dear Members of the Board: As we approach the end of 2005, 1 wanted to take this opportunity to share with you some of the exciting accomplishments we have achieved this year. In addition to providing high-quality cable television service, Digital Cable, Comcast High-Speed Internet and Digital Phone, Comcast recently introduced its newest advanced service called Comcast Digital Voice. New Products and Services During the past year, Comcast has invested more than $440 million in our network to offer more choice and control in our programming, products and services. This investment has helped enable us to launch Comcast Digital Voice, our next generation voice service. This new phone product offers all of the reliability of standard phone service and includes more than a dozen popular calling features, unlimited local and long distance calling and web access to voicemail - all for one low monthly price. This exciting product has been launched throughout the New England region and has been extremely well-received by our customers. This year, our popular Video On Demand service offerings have doubled, with 3,800 programs now available to our digital customers, the majority at no additional cost. Our On Demand menu includes hundreds of hit movies, children's programming, sports highlights, documentaries, fitness and cooking instruction and many more cable favorites - all available at the customer's convenience and with the ability to pause, rewind or fast-forward. Comcast is also proud to have launched its newest children's network this year, PBS Sprout. Full of popular programs for kids, PBS Sprout has received highly positive reviews from parents and their children. In addition, for the third time in two years, Comcast has increased the speed of our high-speed Internet service. At 6 and 8 Mbps downstream speeds, customers can take full advantage of the ultimate broadband experience and our full suite of products on the Comcast.net web portal. Downloading music and videos has never been easier or quicker. We have also added tremendous value for our high-speed Internet customers by providing free McAfee security software, delivering virus scan, firewall protection, parental controls and identity theft safeguards at no additional cost. Customer Care First-rate customer service is our priority. Comcast has hired hundreds of customer care representatives in our six New England call centers to ensure that each customer has the best possible experience with our company whenever they call. Every call is answered by a well- trained employee who is dedicated to our Think Customer First philosophy. We also continue to make home visits more convenient for our customers by adding additional early morning, late evening and weekend appointments. frev Page 2 Reading Community Investment Throughout 2005, Comcast continued to give back to the communities we serve through our philanthropic and in-kind contributions. We strive to be more than just a cable company or even a good corporate citizen; we are committed to being a vibrant and involved community partner. Our more than 5,000 New England employees live and work in the region and are proud to be a part of a company that not only provides quality service and products but maintains a genuine partnership with its customers and elected officials. Education continues to be a top priority for Comcast. We support your schools and libraries with free cable and/or high-speed Internet connections. To date, we have provided these services to more than 3,200 schools and libraries throughout New England, representing an annual commitment of more than $4.5 million. Thank you for reading this brief update on our company. We look forward to being your service provider for many years to come. Should you have any questions, please do not hesitate to contact me at 978-207-2264. Respectfully, 9(--70- V/)T ~ Jane M. Lyman Manager of Government & Community Relations gc~ ~ o Jobs ma si More than 90% of customers are satisfied with Comcast Hired hundreds of customer care reps and technicians to improve the customer experience Expanded weekend, morning and evening appointments '311 k More than $4,5 million in free cable video and high-speed Internet connections to 3,200 schools, libraries and Boys & Girls Clubs across New England Over $1 million in donations and in-kind support to New England nonprofit and charitable organizations 1,500 volunteers participated in Comcast Cares Day throughout New England °;t v ti t ~ vn ~o ® Named one of the "Best Places to Work" by the Boston Business Journal in 2004 and 2005 Named "Fastest Growing Company" by the Massachusetts Network Communications Council in 2004 and 2005 . Latest Comcast Digital Voice 18 HDTV channels available More than 3,800 programs ON DEMAND, most at no additional cost Doubled the number of programs available ON DEMAND, adding new features like Patriots ON DEMAND, Dating ON DEMAND and Karaoke ON DEMAND ga3 Ce,cn~se~ ~ ~ C t6f EAST SIDE NEIGHBORS 17 Elliot Street Reading, MA 01867 December 6 2005 ~a Massachusetts D.E.P. C71 i Bureau of Waste Site Clean UP 205 B Lowell Street Wilmington, MA 01887 Attn: Patricia Donahue Dear Ms. Donahue: Enclosed please find a Response Action Outcome statement report (RAO) pertaining to release tracking number 3-19885. Given that the subject site is a mixed use area containing residential housing, we request MADEP to audit the enclosed RAO report and to make a determination that no additional remedial actions are required to maintain a level of no significant risk to public health, safety and welfare of the environment pursuant to 310CMR40.0000. Please respond to us in a timely fashion at this address. EAST SDIE NEIGHBORS 17 Elliot Street Reading, MA 01867 Sincerely, EAST SIDE NEIGHBORS Cc: Town of Reading Board of Heath Town of Reading Board of Selectmen 1Z Town of Reading Building Department Town of Reading Planning Board Town of Reading Zoning Board of Appeals ~a~ OF F 0 Town of Reading 16 Lowell Street r Reading, MA 01867-2685 s`arNCOa4o FAX: (781) 942.9071 Email: townmanager@ai.reading.ma.us CERTIFIED MAIL October 21, 2005, . Nicholas Diranian 15 Timothy Place Reading, MA 01867 Dear Mr. Diranian: (C n TOWN MANAGER (781) 942.6643 It has been some time since you requested approval from the Town to allow the encroachment into the right of way of Timothy Place for your pool, fence, gas line, etc. This approval has twice been denied by the Board of Selectmen. You have done nothing to remedy this situation. Therefore, be advised that .the Town of Reading will take whatever means are necessary, including enforcement through the courts, to require you to comply with the approved subdivision plan for the property and to eliminate this encroachment. We'd had hoped with adequate time that you would be able to get this matter resolved, Clearly; this has not been the case. inc rel-r Peter I. Hechenbleikner 1 Town Manager cc: Joan Langsam Frank Fink (~V Glen Redmond Joshua Latham 1 7 VQ" % P-e ~e,- /-i L c ~uS Town of Reading 16 Lowell Street Reading, MA 01867-2683 Mr. Patrick Schettini, Superintendent of Schools 82 Oakland Road Reading, MA 01867 CONSERVATION COMMISSION Phone (781) 942-6616 Fax (781) 942-9071 ffink@ci.reading.ma.us December 8, 2005 RE: Wood End Elementary School, Order of Conditions, DEP 270-341, RGB 2000-38 Dear Mr. Schettini: We are writing to update the status of several matters at Wood End Elementary School since our last letter of August 5, 2005. In response to that letter, there was a site inspection on August 18 with representatives fiom Ai-3, JNEI, J&J, and Shepco. Remaining work and responsible parties were identified, an e-mail list was sent on August 19, with an update on September 8. We have inspected several times since then, and have determined that the following work has been completed: 1. The floor of the northwest detention basin was seeded and the plants have grown well this fall. No further work is needed except for annual maintenance. 2. The cascading catch basin grates were installed near Roma Lane. 3. The Town Forest Committee accepted the rip-rap that extends into the Town Forest from the northwest basin. 4. The new parking lot has been completed, including the new dumpster pad, the corrections at the catch basin in the bus loop, curbing, sidewalks, and planting of disturbed areas. During the most recent site visit on 10/27/2005, the grass cover was still somewhat sparse and we asked Mike Debrigard to leave the hay bales in place. Sk IL The downspout at the northwestern corner of the building has been connected to the underground drainage system. The Commission received a set of plans on September 13 from Kristen Whitney, Office Manager, Ai-3, with a transmittal cover identifying the plans as the as-built drawings for the school. We also received a request from the Town Manager in November for the DPW to install a pathway from Dividence Road to the door at the north side of the building, partially over the existing fire lane. He also requested installation of a pathway from the door on the south side of the building to the sidewalk on the west side of the building, again, over the fire lane. The Commission reviewed the site visit reports, the set of plans, and the request for the pathways during their meeting on November 16, 2005. The Commission voted to approve the installation of the pathways as requested, provided that the surface material was a pervious material such as stone, gravel, wood chips, or stone dust. This approval was conveyed verbally to the Town Manager and Director of Public Works on November 17 and 18. On November 16, the Commission found that the work on the site has reached asatisfactory state for a Certificate of Compliance, and that any areas where the grass cover remains sparse next spring can be addressed as part of the on-going long-tern maintenance of the site. We would note that, if the fall maintenance has not yet been carried out, it should be completed as soon as possible. The Commission also found that the plan set submitted on September 13 is not sufficient for acceptance as the as-built plan set for the Certificate of Compliance. We reviewed Sheets C1.0, C2.0, C3.0, C4.0, C5.0. L-1, L-2, and L-3 and compared these sheets to the equivalent sheets approved under the Order of Conditions, and also to the revised site plans accepted during the course of construction. (We did not review the plan sheets in the set that described architectural details, as these are not Conservation matters.) For the following reasons, it is not clear whether the plans submitted in September actually doctunent the as-built conditions on the site: a. The plans are entitled "Contract Documents" and are dated January 21, 2003. There is no recent revision date. b. They are not signed or stamped by an engineer or surveyor, and they are not accompanied by the required comments from the design engineer concerning how they differ from the approved plans. C. They do not show the playground north of the building, the new parking lot and dumpster area, the changes in grading and retaining walls near Roma Lane, the rip-rap in the Town Forest, the low-flow channel and actual grading in the northwest detention basin, or the changes in the outlet control structure at the northwest detention basin, all of which were approved deviations from the original plans. d. Some of the inverts and elevations for the drainage system components differ from the approved plans, and there are differences in some of the numbers stated on Sheet C1.0 and C4.0 for the same structures. Because of the plan dates and lack of signatures and comments, it is not clear whether any of the numbers are meant as as-built elevations. V The Commission would be willing to accept the plans submitted on September 13 if a new set is submitted that is signed and stamped by the engineer, and a letter from the engineer accompanies the plan that clarifies what the plans show. The letter should also confirm that the project has been completed in substantial compliance with the approved design and that there are no significant differences that would have an impact on the wetlands. It is also our understanding that the DPW and Town Engineer have been asked to prepare as-built plans and comments for the work done on the new parking lot and associated areas this summer. This submittal would complete the as-built records for this project. It is also our understanding that the DPW will submit a new permit application this winter for a more permanent sidewalk design to encourage pedestrian access to the school. The Extension Permits issued by the Commission and by DEP for the school will expire in March of 2006. It would be. best to submit the final as-built information and obtain the Certificate of Compliance for the school project before the Extension Permits expire and before the work under the new permit commences next spring. I would be happy to meet with the engineers to discuss the as-built plan requirements at any time, if this would be helpful. Thank you for your assistance with these matters. Sincerely, Frances M. Fink Conservation Administrator cc: Mr. L. Scott Dunlap, Ai3„ 286 Boston Post Road„Wayland, MA 01778 Mr. Bimal Patel, J & J Contractors, Inc., 175 Cabot Street, Suite 440, Lowell, MA 01854 Mr. Josh Alston, JNEI, Inc., 186 Lincoln Street, Suite 200, Boston, MA 02111 Mr. Sam Bird, Flansburgh Associates, Inc., 77 North Washington Street, Boston, MA 02114 Mr. James Jordan and Mr. Steve Shaughnessy, AD, 286 Boston Post Road, Wayland, MA 01778 Mr. Bob Corning, Geller Associates, Inc., 77 North Washington Street, Boston, MA 02114 Mr. Gary Shepherd, Shepco, Inc. and S.U.B, 55 Main Street, Townsend, MA 01469 Mr. Ted McIntire, Director of Public Works Mr. Peter Hechenbleikner, Town Manager S4 31, CP Board of Selectmen Reading Town Hall 16 Lowell Street Reading, MA 01867 Dear Board of Selectmen: December 5, 2005 We are a group of Reading residents who are very concerned about our town. We want to make sure that the town has the right balance of commercial and residential property in order to have additional revenue to support town programs and to promote thec'-`',, quality of life we all enjoy. I Irs Over the past several months, we have heard general information about a proposed retail center at the Addison Wesley site. Although we do not know all the details about this project yet, we did see in the paper that the town's traffic engineer is confident that the traffic will work with the improvements that are proposed by the developers. From what we have heard, this looks like a proposal that is worth bringing before Town Meeting. If it is attractive, brings in enough revenue, has access solutions and the neighbors are adequately protected, this development could be a real win-win for everyone. We hope the Selectmen will continue to work with the developer to bring forward a proposal to Town Meeting that will benefit Reading. Sincerely, _X fv 7Pgi /V 94_.11 rA"/ 'fie rf 5. 21 9"z I 6xud~l._( I cult!~, V AYrA- _1#2- -133 4J. 0perr-7 0,A,QZC,4&_ 781-R+I-6638 A g~ . Board of Selectmen Reading Town Hall 16 Lowell Street Reading, MA 01867 December 5, 2005 Dear Board of Selectmen: We are a group of Reading residents who are very concerned about our town. We want to make sure that the town has the right balance of commercial and residential property in order to have additional revenue to support town programs and to promote the quality of life we all enjoy. Over the past several months, we have heard general information about a proposed retail center at the Addison Wesley site. Although we do not kriow all the details about this project yet, we did see in the paper that the town's traffic engineer is confident that the traffic will work with the improvements that are proposed by the developers. From what we have heard, this looks like a proposal that is worth bringing before Town Meeting. If it is attractive, brings in enough revenue, has access solutions and the neighbors are adequately protected, this development could be a real win-win for everyone. We hope the Selectmen will continue to work with the developer to bring forward a proposal to Town Meeting that will benefit Reading. Sincerely, Z( O 01211, I 9\1 Metropolitan:. Area Planning Council 60 Temple Place; Boston, Massachtisetts 02111617%451-2770 Fax 617/482-7185 MAPC Serving 101 cities and towns in metropolitan Boston December 7, 2005 Dear Board of Selectmen: N $,-:j I am writing to you to draw attention to House Bill 2408, An Act Relative to the Taxation of Telecommunications Companies, which would close a loophole in telecommunications company taxation and increase tax revenues to many cities and towns. Deregulation and new technologies have transformed the telecommunications industry into a technologically advanced, multi-billion-dollar enterprise. However, obsolete property tax laws are enabling telecommunications companies to avoid their fair share of local taxation. H. 2408 would eliminate some new and long-standing telecommunications tax loopholes, and help shift the tax burden away from homeowners and other businesses by bringing an estimated $140 million into the state. We urge you to support H. 240810' deliver revenue that your community sorely needs and rightfully deserve: For your convenience, we have included a model resolution for your community to pass in support of H. 2408, and deliver to your Senator and Representative. In addition, if I may be of further assistance, please contact me at 617-451-2770 ext. 5005. Sincerely, M c D. Draisen Executive Director Enclosures d ~ [MAN Metropolitan Area Planning Council 60 Temple Place, Boston, Massachusetts 02111:617/451-2770 Fax 617/482-7185. MA'PC Serving 101 cities rind toions in metropolitan Boston Douse Bill 2408: 'telecommunications Property Tax Fact Sheet I. Background Laws providing for the taxation of telecommunications were enacted in the 1920s, excluding much of the property owned by telecommunications companies from tax liability. Since then, deregulation and new technologies have transformed the industry into a technologically advanced, multi-billion-dollar enterprise, yet these companies remain advantaged by archaic tax law. In addition, multi-faceted corporations are taking advantage of the loopholes through classification as telecommunications companies. Recently, there has been a decline in telecommunications assessments and taxes, which shifts more of the tax burden on homeowners and other businesses. For example, 60% of Verizon's property is exempt and $2.5 billion is removed from municipal tax bases, yet Verizon enjoys the same municipal and state-sponsored services as property tax-paying home and business owners. In 2004 - 2005 alone, there was a $1.31 billion (or 37%) decline in telecommunications assessments and a $31 million reduction in taxes paid by these companies. Municipalities need to make up the difference somehow, which results in higher residential and commercial propery taxes. II. Legislation Representatives Anthony Petruccelli, Marlin Walsh, Elizabeth Malia, and Martha Walz, in conjunction with Boston Mayor Thomas Menino, have filed legislation to close the loophole that exempts telephone poles and wires, The legislation removes the. exemption for poles, underground conduits, wires, and pipes of telecommunications companies laid in or erected on public or private lands, and clarifies the definition of a "telecommunication company." This change would result in a shift of an estimated $140 million in revenue from residential and other business owners for cites and towns. III. Effect on Your Community Attached to this fact sheet is a Telecommunications Legislation Community Worksheet prepared by the Massachusetts Municipal Association. This worksheet shows the estimated effect House Bill 2408 would have on your community. Please focus your attention on the bottom line of this worksheet, which shows the difference in assessed value of telecommunications property were this legislation passed, and the consequent new taxes paid by telecommunications companies. SVV z. MMA Telecommunications Legislation Community Worksheet READING FY05 Actual FY05 At FY04 Value Change FY05 With Full Bill Impact Change vs. FY05 Actual Value Rate Tax 3,659,500 12.57 46,000 7,484,900 12.56 93,978 (3,825,400) 0.01 (47,978) 18, 712, 250 12.51 234,165 (15,052,750) 0.06 (188,165) Explanation FY65 Actual Shows the actual FY05 value, tax rate and tax for telecommunications personal property. FY05 at FY04 Value Shows the FY04 value for telecommunications personal property, the recalculated FY05 tax rate (which factors in that FY04 value) and the corresponding tax. This illustrates the impact of many telecommunications firms exploiting loopholes to avoid the consequences of the RCN court decision. FY05 With Full Bill Impact Shows figures that recognize all telecommunications personal property as taxable. The value under "FY05 at FY04 Value" is multiplied by 2.5, a factor which represents the ratio of Verizon's total personal property to its taxable personal property. Resolution of the Town of >>INSERT NAME << >>DATE << Whereas, the Town of >>insert name <<and all cities and towns in Massachusetts rely heavily on the property tax to fund police and fire services, schools, road maintenance and other vital local government services, and; Whereas, deep local aid cuts since fiscal 2002 have forced greater reliance on the property tax to fund local services and have increased the burden on homeowners and other local taxpayers, and; Whereas, exemption of real and personal property from the local tax base reduces local revenues and increases the burden on other local taxpayers, and; Whereas, telecommunications companies are taking advantage of obsolete provisions in property tax law to avoid paying local property taxes increasing the burden on homeowners and other businesses; Now, Therefore, Be It Resolved, that the Town of >>insert name <<supports House Bill 2408, AnAaRelatiw to the Taxation of Tekw,,~,.rarations C omtrayaes that would close the telecommunications property tax loophole and eliminate the unfair exemption in out- dated property tax statutes. Town of >>insert name << >>add signatures << L/ S C,(~,C 60 r Arlington • Ashland • Bedford • Belmont • Boston • Braintree • Brookline Burlington • Cambridge • Canton • Chelsea • Chicopee • Clinton Dedham • Everett • Framingham • Hingham • Holbrook • Leominster C ~ M~ Lexington • Lynn • L}mnfield • Malden • Marblehead • Marlborough w ADVISORY Y o Medford • Melrose • Milton • Nahant • Natick • Needham • Newton BOARD ~ Northborough Norwood Peabody • Quincy • Ra~ph • Reading Revere • Saugus • Somerville • South Hadley • Southborough • Stoneham d Stoughton • Swampscott • Wakefield • Walpn e • Waltham Watertown • Wellesley • Weston • Westwood • Weymouth • Wilbraham Wilmington • Winchester • Winthrop • WobuR• Worcester 1 TO: MWRA Advisory Board Members FROM: Joseph E. Favaloro, Executive Director MWRA Advisory Board SUBJECT: 2005 Annual Water & Sewer Retail Rate Survey Enclosed you will find the MWRA Advisory Board's 2005 Annual Water and Sewer Retail Rate Survey. With the assistance of representatives from communities throughout the MWRA service area, the Commonwealth of Massachusetts and the United States, the 2005 Survey provides a broad array of retail rates within the state and throughout the nation. The primary intent of the document is to track retail rate increases from year to year. The survey contains a comparative assessment of water and sewer charges based on actual water usage within MWRA communities. This information can be found in Appendix C of the document. Our Survey indicates the MWRA service area continues to have some of the highest retail rates in the country. Combined annual water and sewer charges for homeowners using 120 HCF per year in MWRA communities rose $56.43, or 6.3%, from the 2004 Survey. MWRA retail rates have increased 32% over the past five years. Looking ahead, projections call for MWRA combined water and sewer wholesale charges to increase by 44% over the next five fiscal years, which will directly impact community retail rates. I hope that you find the Survey information helpful. The entire Survey can be accessed on our website at httD://www.mwraadvisoryboard.com in PDF format. Please feel free to relay your feedback regarding the survey to the Advisory Board office. U f Joseph E. Favaloro, Executive Director 11 Beacon Street • Suite 1010 • Boston, MA 02108-3002 • Telephone: (617) 742-7561 0 Fax: (617) 742-4614 MWRA- Advisory Annual Water and Sewer Retail Rate Survey Board November 2005 A r 2005 Water & Sewer iQetaii ,to Survey aver & SeyUeC A13"U at uf0jes r C.Qmbit' MXIVRA com ► WRp Advisory 803rd Charges ~n j99j. - 24®5 $945 t,. $1 ~Qdo - $842 $794• t:;: 900 $724' _ a:::•. 1 $699 $$00 $648 + 700$626 ',:•'1 $ $593 $55 600 9 523 ~QQ $ 43 4 $300 1 $2 $100 C7 to N 00 t3~ N N N i cf) 7 ` oximately gd 00d gallons}. N ~ ~ er et app C5~ cubic #e ~ *Charges are used on annual consumption of 12,ddd sage - 2 ! MWRA Advisory Board Oil r N t 2005 Water & Sewer Retail Rate Survey. 2005 COMBINED RETAIL WATER & SEWER RATES COMMUNITY CHARGE COMPARISONS $0 $200 $406 $600 $800 $1,000 $1,200 $1,400 $1,600 $1,800 Arlington II!4!14!IllilllGiii41!liI!41!I!fl€Ilillll!!Iilll!I!li!ill~l i~! !iii!!1111li!Ili(!Ilili!!!I!III!i€!!tlTl(~I Ashland Bedford Belmont Boston Braintree Brookline Burlington II I I I! l'I i'! 1'1'1'4 I't i 111 1 4 1 i t i!t ! I i I ! I( I I Cambridge 1 I !sill! I i! f,I.IILis(.I€L!tl.l!LIIL~.I!Lil{.~J.li,.lt.ll nl ! ! I I iti I i!I Ili!!!;!dl!,3 ; PI I ill!il(I !!1111!1€!! !!i Lel.i:l.ili.li Canton I{!!(Eliltl i!' If! 41i1114iliill4ill!(4!I!jl!Ijiil4iil(!1!il4li!{ iI{h'II!' 4! (till 41t{il I I!41IHh'll€!nl!Iiilil ! IEI{({!III 411iIII411hIIltl i Chaises Iililil!(€jj!!1!i!4(1114':Ii14111(JEi!I';ii!?I!!!I!II!€!!!il.'•I!!!!i!!li!?li!!I!!!i!i!I!!!!I•tiJ':I!i!lil![i!!!€!!(?€flllil!€(i,I(!i'ai'!IP!I!I!liili'?!i(!€(@I Chicopee Ii` 11'1!1 I!I'III' li`ii1`14!1!"I!I!I!I!ill!i!II!Ilil!Ili!II!':iil4lll!ii!!I!!9!414!I!liill9 i Clinton ! i! • j {Ell f I!!ii'i' i(!'f !il'I !I!jJ 1 1 Dedham !'„!!il!41RIIII!(!ill!li:!14iiiR4441!!3i!li4iil!Iiil!i!!1€!!Iil!!ill4i!iiii;il!iIIIi4!!II4€i!!44!!€(414!1!iii!!4i!IP'{!il!iI!!!II!cl!il44jil!!"I!iU!iii;€!ill!11141I!I!141!411911!41!1!1!€(!iil!i€R€41€1!1! Everett a"•liI'ill"II'pkiiilfii!I!I!lii{.IEJii(!0?ii,! 4lil!lidill?!i!!I!I!'Iii!il!i!I9!i!iii!i!i!I!4["(€1411 1 1 Framingham I!.;•!!li!Ei!.i`:i4i!Ili?i!ill!I!i'!'ilii!!i!i!!!il!i!.`i?€!i1111!:•I!I'!R€44.!!14€li9!i'lii'!.'€4141(!! r i' il: i' i:l i , : ,.i,l•!= i , i i::i;, .,yi ip'p'lp'i 'i::i•'q'I,li'i'PI!'7::1'.:Ii':ii''' !'1"ii!,i.,sip=t!!:li9liV!pgi!: 1911 5'' i' i' i'l°' i 5Y! i , Hingham '!'li'9gr!1'ii' I I I . ! ! .:..,.:I 1411 l h:!~..I~.I :ll..hi.L!.,ih.il•n.,61:Ii!ai.ih tllltl I.ILhi!•hf.Id•u .i !!i. IL•el.!t..!t.l!t.hi.!!!.t:s•.I,.!,E..III„i..IL il.,l,.ll!Lk.th •n.{r,.,b:,i::c ~l.:u: rtl:n..I!,.IIUi!:lELEl..ul l . !,i l.! I LJ . Holbrook l l!I li€?'!i l!1111111E!slli!li! 1!11?n i l El! 1! 1`4'11! I! 4{ 4illfl'lj! lii liPli! Iip1!i !'Pli !iI liP1'j'I'I ?i r ! I:~il •,:1', I !'1'1:,1 I( I',i It! E 1 1 Leominster f . a :.t'I lit !!I !'1''! Ii,.III rI i€(! € ii! i(LI t Lexington 14liilif4i!!!!14441!!IIii:4ll!i!iISI!I!!!J!I!I!!il!lil!iillgl!ii14Hill l!(iSiii!!I!114?i4!!41i€i!!I!i4!!!4!i1144~!!.II4i!I!!!!i€i!!4114I!Sllyl!49f!Ei(!i!4El!III'!I!!!I!!!! 1 Lynn t ['h!dII.I4.!i#!I'h!!U'(!i!lli!!I€IflliilId!tt!:!I!I:@91':!tinli9iull>il:ill!!llllfi!!lillilltnlflilil!I(I•lil4ill!lll ' r ip ; i !!r!!!!n n ipi 9r` !~!i'14 r Malden ;?;;!i!i!i•II4i!!jii!!u!!!ei(i4!i':Ili!I!i!Ili!iI!i!I!€J`l 1'1!1'1 ~ I iI!!<'6ii!.Ii:I!.ai,€iiiii611!lii.•filili.!.u4!..ii.!€!€iii. 11.4.1 ~ i9 I Marblehead Ii9ii Jill J!?iI!I!! 1l! Jill! ili 44;ii~~114i!id?ii!I!lil!`:!I!li!!ill!4!!l!I!1!9Jill';ilili!i'. , i!Illi€IJ lit!I!!!:•II!li!l€!!!?II!'i 'yyi ~il!?C!? 41!€i!i!!l!!!1!!!11€9 Marlborough h PI ' 4n'il!ib!t! ! !h!l4 '!"15!14'h i !:ll941::4dii 'nit i i'! 'i'!'iiP ! €!h'li'4n'uJ!!tIE 4111 1 t Medford i j!71 p1!i BYIsI lr i 'IEi !!!'I!,! !€I!!li'!il'14ii9l=1!I'iilliii!:'i,: i iii i'i'i! i i'a !i ~!i! i!j' i'iilai''i! t i 1!I'€"'!! i!!'llili?!! i iii~iili!i ?!!11 •.14 € L I ;.I h la..! iI! 11 ! L LL 1,..! ; ,la ! .:.:l.okl !.I i.t.Lr1.l ! 11 , ! .k:i! ! tl}.h1, I I i l Melrose i!!iJ!i `i!!!!44i1`:!il!I4!911!!!Iii!!€I!.lii!Ii4ii!!€I!!i'l€1I!iil4!15€Y•.f4':ii`:!iH!iIi!il€i!I:4l!a'ill':!IIi4Ii'.4!414114iIiIiiE€lII€I!IiI4iI?I!S!FIi41!li!!I!4!iRii'!!il€IiI 9"•I~'li"ti'i'4~!i!'!i!"!i'iy'4i'i'(f'('Sif'i~'''!ii.`I'!la!I'I Milton ,.1 R1.:1l,MIll::!.;€Ij;~E,!II,:LI,ILuL,!!!,::Il:ul!hL•f:, fl.!€:.:~:6€i.Il3.aa!h...l,.lll I!!,€.,.11,.1.11nF:!.,au.i::aua,..l..1.El:,.:a,la...l!.:I!LI!Lnii.!II,I!„4,..~ 41:1!13,,:I,:u,a::.I NahaM ]4ii1 lm:.,,t~.,:ii:''Ee"9:pn•:,: h!.!.ar.! ri::r,r ti:,i,:u i 't!'i5!'''p5!i:i,!€!r.!:r!,r;,ii'iY!fY~Rgi !li !€2'?'IE!iEi'IE'€.. n€i:,.l•i, •.!I6j i•ri' 11'ip'i,i .,,!4e.nu„!I.I.1. ..tma9b. .,i,....l.:1.1,~.0 Natick. Iii.1l!II'!!i4!€!.!ii!ii!4!liiii!4!.i(!€1€1li€i!liiE!iiI!I€1!i!!!i ?€i!ill!iiI141!1!iI4B 1444!':!411!I!tip'l`;`li` Il 41!'14!1€ll(ili€!4!!4(141! l!!tc~ „ !!I!Ii!III Needham L -':,!'iq:ii.i'i.li€... ip t. !:':I:.n'LLL +1I=1i.1'e!aili=ll'.a0!...uI"uII"l1'l.i'u=L!l'=?.!1'9'^€!.3.i1.ep'i!.t...,s!!1!tl!"dI..u..t'i!"!,!",I,I.!"Ltn"!,!"+sLlp:,..y,,:k.1:!{!,1111"!,!';!;.k!.kl:,(.!n,:ln::,,L1:.°'I.IJ.'!!,°!.!"I..!..~,1=1,:.i!'iL!'=:Li'J.,!.1,1.,.'!1'!L1!'PLU:i,LI:!!ia,,i.iiL'u!l.u!':,,!'! .,,L.,.::.,..1.,,...,...u....!"11'1i,..~:,,.....!.I Newton !jli!sll1!'!4lijil till iii!!llliili€i!(ill III ill Ili il!E~4!Ili!.i Jill ilM 1 Jill! !I;!l I I i!144!,iE411!i i!iJ!i!J4i€ii€4fit!liI!Iil!i!'ilii .l!!iII414444!I!I!liil Nodhborough i!lii!?!il!iI!!.Ii!?1!14iI!.fi!!.li11111414!44(4!.I!I':€i!!4i!.!il:•414P!!€14.14III!!I€14iI!Iil!!€i!14€444!!1!€4!i{?ill?Ii1 r Norwood !i !I i I i lilt ! ! !I t s"I! !iiII i i!ti! i! !tll.'!•,"Ip i I E h ItI!i „J!I I ! it!tsf ! ! !I ! Ii a I ! I t !Li `f !.s l i. i - 1131! L 1 ls.i:.i ! Peabody I I ! t ~l!I I I'! 4!44 ! I II!411!'!!4ip!t { €I!I!II!4'I(li!pi!i! 4 !I! III! h 1441 (pi!II i Quincy ~Il (!!11!Ill!'r4i !!44114!'!ill!'!.ti4ii44!II4I14!!!444ii14iii!4(!f!!44!1111!IR11!!!![€iill!!!!!lii'!i!J!!!i!!!I!Ii!H!!!iIl!!!!9!!!!I!!i Randolph (I l!! 4!€ll lIli! €tl'! I i•! I I I i 1 Ili! i.;€ iI is L4 i! I!I,I!1!I!!!.ij 1!1:,!9 t ` j:it:•l"i E~:19: ::1,1:1:;:1:••iii Reading 1! JIM i!"i!i":[,: i::ii!•ii::i!iit!i'!!'i! I!i!,!!i!'!i.! ! o:,..fs,.lu.C,.,.?.€,!,,:!i:L:G, I' Revere i Tt i!'! ; `I=•r I!i,!!!:!i' ill!!i!!`:iil•94i!i!1111ii!!!!I!!'!i (!1•,'!i!,II!;Ir(!!!!!i!II!':!!!l iii!i`I•!'1!II!i!I!!!k!!I!I!iili!'!fi!!!I <!'!!i'I!G!il!I!li!!!1!i!i!i!1!ii!!i!il iii€.Li.l!.6!tl.i!.. ?•Ei. 1..1..1..4.,:... ,~.!.,•i. !...!L!.!. ' Saugus !i! It! lil li! .y'I ii4Jil'!.i!.';is'! ! !!i R"t !MEMO 4!!Gi44!1.4!i'!!'il4!9 1 1(11 11 1d ile i1i44441ii4!i!Il!il!!!•!!ilf~i4!4RI1!44i i:~ilitilll€!!`!! ! !:4"1411' ii•!14!i'!:.ai.!1144!!!14r:.I!91114€II!!'.r:I!1!f,!€(il!Irii!4III1 i t'! • i i i!'! Stoneham ,,II.!,':!'1.!4 t1! !''::!liL':![' elfl'it'!'Ii:i9!(Yt!inlp:iPiip i:i'j,:!i:!iP! 1441!'! pl ps'! Ilrri ! (tii'li!i!pb! lii'iF, i l i i.l Ill nt n: , i!.!.L•L;;r,IjoL.,.,:..!:!.,::!e.!,:.n:.!:,.u..,d.1,i.u..i:,.!,1,::.,i.!,Ln!.i~::i:!.LLI,:.L,~ :.~L,a:ri.l.i:!.!,i.!:I:!:i:b[,:{•.d:!J -st'a +!!:!~,'r,'It :n,'1!!e'n,°!!:'t'!b'!A'i!'n,!!t!r:rnrp;m$i!n's.!!iltl-i:~Ili itpl: '4:1'1!!''1!"t;!:!!" t: ai bt't ::1,'n Stoughton ::Iy411,II!,t.I,!hil:,1,..I„It:.id,4,.,!I,,iat,ln,6,J::s,,,!,.1,.tw4,.6,u,p,,,!„Iai!!„i!6i•,:I,IlII!I!I!!!Iiit,.i.,,E:,,fll,fil,!!,;4;!i„tt„(i,i!,~,!i:lt, 1Jill Swampscott 1!''=.!.i 1444! 4!14!!lli!!li`•!li!I t! 114!'4!!! fi!i111I! 1'i!! i €I! i 114114! i444!c' i€li!if !r!!!Iiili!!`I!!1';i!!! 4 1a,9! i! ri ii jii'i: ='t'p i jilij!II: illt:r.I!!i 1I@!i!:ix9 9!'i::! 0111 !!E.:.! 1"m !,i iI"'ii' = ii 5i Wakefield n!il!!4Iu!9:iI!!kSilli!!Iii1441!!!1!!Ilj!kiIIII!!4!E'.:..,,f.~.hi......r,!.I..~.,_.hlk~aa.,!..I~. .u.: ~,c..l.„,n.LS!.~....,~tl...h!.li!.!~.I,LiL_~.t Walpole !!€i{"!flli11; i!i l!!!!i!iii!!li!P ! !ia:jii!!iiii!i!rI!i•'!!'pi,, 11!!{i!I!lj!:piitli!!'!IIP!!!flj!(i;ifi!!F•.!i1195'•!ii!5j r'r!iH!!PI :!r y!@i1Pii@41 1 I 1,,:. !I~ !.I 1- 11 Waltham jiL; iltl!!IE lm !'.i !li-1!!i;!! ! Ete 9!9! 44! !!9!!111 !I!11!!!R,l~LJ 1 r Watertown l„Ii.!t!,9!,III!114t(!:il,...!.t..!!i,1.1,Ii,EI'll iUnin;ja•!i!t!,1,!,!I,!•;e!,141,1!iild!Jill ,l!Ili i,l!I,1,.!,! Wellesley li5!iifi4!i4!114!41!,i:!ill:!Iliii!li!I4i41414iiifiii!4411!!iii4145iI4!4144!I`:Ii1i€i:'•lil!i!!4!!il!I':11!Li11i!!I!4iilJtill!!!II!illiill i W estwood Iii!Ijfiiiiili!!•i4iiil:.i. ~F •u. I;.,Liais.l.::ai~ I,.,,I~.;,,..!,sl.::;.,,,..!:.I!, ts. i!.,!..,!..!,i.u!...!..I,L,.LI Ig:l.li .:i. ~ia!1: u: thn.in: n..!!,!I. ~!<n:,c ~et!!:!.:I,.!n.4 ':Iptf •:lti'!,1':!t"9" I'll"i !i^: i ~,I'li Hi i:,,i'!:t'! i'iry'1:p9!i! ! !!r!'!'lti € !''€!ti':I'pl'pl:`! 1!9,a!' Weymouth liiil!:i!I,.Eaii.....JL,I!,i!.i.,,!!.ui.:l:r-G.II„i.te.id.!n.ni.,:!.i,1.~!.I:•.,,.h!.,d.n!.,,f.,iI.h!.!IL,:a1,!.u!.::,!.,.:1:6~.!:i,t!I:!:(:!!!:i!ia!I,!x•!.i•I!.:el,ba Wilbraham ; !I'.I!I!I,I IIf4:pl UIIi4,i111 t,l I e4ii!411a €ds!,I Iil ;i i!! i!It!I,!i fi!9 1 r Whmington I;141!ii'r,141111ii4I:!.!li!.i!4i!i:'ra;l!14::1!!i!!!!!111 ill;!Ol,iili!il!(i!!iiti!i!iiiii!ill;l'li€i!i!illiil44!1!I¢!!!'r`?i!ii11 ' ` r Winchester -!!.!!='•hl!: 19'1:!', ?91iI!r!;il. 'i4?i!,:;,, AVERAGE !':I':n,I:li.!::tLli:.il•li.::i,;l!,dU.•I: i`,5`.I~!.iil:: 1:::.9!.trll ! Winthrop 1 ' 9 ' !Jf'! I'i' n"' `1;'441`: ;444!!1'!iii!tli!illilfi!i!!I!!141i!!!il!!i ?!'Ili!i1I!1!!1!!!Ili4ii!Iil1`•!41l•'i!!i4€'!;I`4r ~i :4114•! •!4!`!' ! Uli:i • ! J~il ! I' ! i ` Wobum !i`Ifi!1!1 ! ; li! iii 4 i!':'? i1 U!i!!14!!iii !:1111 ! i! !IIi'r.!Iill I"iiil:!.!II!!1 I i ! Woroeater i!!ii!i€!!ill!!!!i(Ei!is1ri!€4iii!i1114Il!!!!1l!!!l~i!!1!1441%!!!i!i!i4!!!1!!!1!!i41i ! NOTE: Charges are based on an annual water consumption of 12,000 cubic feet (approximately 90,000 gallons). V Page - 3 2005 Water & Sewer Retail Rate Survey MWRA Advisory Board ::M YItlllllf 11a AF. N~VIfR~►.6...~ ..........................~J..•.......:.......A.............. Otl 2004 2005 Avg. combined water and sewer cost $888.74 $945.17 Percent change from prior. year 5.6% 6.3% WATER BILLING FREQUENCY Semi-Annual 16 16 Tri-Annual 1 1 Quarterly. 39 39 BI-Monthly 0 0 Monthly 4 4 WATER RATE STRUCTURE Ascending Block with Base Charge 17 21 Ascending Block only 17 15 Flat Rate with Base Charge 10 9 Flat Rate only 15 14 Fixed Fee 1 1 ELDERLY/LOW-INCOME DISCOUNTS Yes 24 24 No (or n/a) 36 36 DEBT SERVICE EXCLUSION 2 2 CHANGES IN COMBINED WATER AND SEWER CHARGES Decrease . 0 1 No change 17 14 0% to f0% increase 31 32 10% to 20% increase 8 10 20% to 30% increase 4 2 30% to 40% increase 0 1 40% to 50% increase .0 0 Greater than 50% increase 0 0 I ~ o ~f Page - 4 D V MWRA Advisory Board 2005 Water & Sewer Retail Rate Survey Water Sewer Arlington (Vii/S)* $333.80 $315.60 Ashland (S) - 800.00 Bedford(S/partial W) 455.00 601.00 Belmont (W/S) 548.72 935.64 Boston (W/S) 352.68 476.32 Braintree (S) - 597.00 Brookline (W/S) 504.00 612.00 Burlington (S) - 263.40 Cambridge (S/partial W) 327.60 715.20 Canton (S/partial W) 346.80 577.80 Chelsea (W/S) 380.40 567.60 Chicopee (W) 278.00 - Clinton (VII/S) 216.00 162.00 Dedham (S) - 878.40 Everett (W/S) 181.20 493.20 Framingham (W/S) 403.20 439.20 Hingham (S) - 762.00 Holbrook (S) - 492.00 Leominster (partial W) 200.00 - Lexington (W/S) 355,20 820.00 Lynn (partial W) 286.43 - Lynnfleld (W) 302.00 - Malden (W/S) 393.60 488.40 Marblehead (W) 442.00 - Marlborough (partial W) 447.60 - Medford (W/S) 363.60 759.60 Melrose (W/S) 439.20 675.00 Milton (W/S) 496.80 849.12 Nahant (W) 850.80 - Natick (S) - 760.40 Needham (S/partial W) 430.00 1,005.00 Newton (W/S) 436.40 608.00 Northborough (partial W) 347.76 - Norwdod (W/S) ' 359.52 527.04 Peabody (partial W) 265.80 - Quincy (W/S) 351.60 582.12 Randolph (S) - 448.80 Reading (S) - 693.60 Revere (W/S) 252.00 85120 Saugus (W) 374.24 - Somerville (W/S) 381.20 646.80 South Hadley (W) 348.80 - Southborough (W) 301.08 Stoneham (W/S) 390.00 750.00 Stoughton (S/partial W) 408.24 780.00 Swampscott (W) 658.80 Wakefield (S/partial W) 456.00 824.00 Walpole (S) - 575.71 Waltham (W/S) 256.56 455.64 Watertown (W/S) 368.12 661.20 Wellesley (S/partial W) 280.92 610.80 Weston (W) 168.40 - Westwood (S) - 736.00 Weymouth (S) - 736.84 Wilbraham (W) 288.00 - Wilmington (S) - 429.60 Winchester,(S/partial W)* 244.80 259.80 Winthrop (W/S) 320.40 621.60 Woburn (S/partial W) 160.00 274.00 Worcester (partial W) 285.60 - AVERAGE $362.53 $616.38 Percent change 11.2% 3.9% Water and Sewer Charges are based on an annual water consumption of 12,000 cubic feet (approximately 90,000 gallons). 'Arlinglon and Winchester utilize the debt service exclusion as permitted under General Law 59 Section 21G(n). Page - 5 Y 2005 Water & Sewer Retail Rate Survey MWRA Advisory Board Water ' Sewer Combined Change Arlington (W/S)* $333.80 $315.60 $649.40 4.8% Ashland (S) 310.00 800.00 1,110.00 0.0% Bedford (S/partial W) 455.00 601.00 1,056.00 0.4% Belmont (W/S) 548.72 935.64 1,484.36 2.1 Boston (W/S) 352.68 476.32 829.00 0.0% Braintree (S) 222.60 597.00 819.60 4.8% Brookline (W/S) 504.00 612.00 1,116.00 3.9% Burlington (S) 135.90 263.40 399.30 9.8% Cambridge (S/partial W) 327.60 715.20 1,042.80 5.1% Canton (S/partial W) 346.80 577.80 924.60 .8.3%, Chelsea (W/S) 380.40 567.60 948.00 5.9% Chicopee (W) 278.00 336.42 614.42 18.8% Clinton (W/S) 216.00 162.00 378.00 0.0% Dedham (S) 515.44 878.40 1,393.84 0.9% Everett (W/S) 181.20 493.20 674.40 0.0% Framingham (W/S) 403.20 439.20 842.40 10.9% Hingham (S) 664.68 762.00 1,426.68 0.0% Holbrook (S) 279.60 492.00 771.60 16.3% Leominster (partial. W) 200.00 184.00 384.00 2.1% Lexington (W/S) 355.20 820.00 1,175.20 1.0% Lynn (partial W) 286.43 528.26 814.69 5.2% Malden (W/S) 393.60 488.40 882.00 21.6% Marblehead (W)• 442.00 656.00 1,098.00 11.41/6, Marlborough (partial W) 447.60 336.00 783.60 14.4% Medford (W/S) 363.60 759.60 1,123.20 0.0% Melrose (W/S) 439.20 675.00 1,114.20 9.5% Milton (W/S) 496.80 849.12 1,345.92 10.5% Nahant (W) 850.80 847.20 1,698.00 12.4% Natick (S) 233.40 760.40 993.80 -5.2% Needham (S/partial W) 430.00 1,005.00 1,435.00 34.4% Newton (WS) 436.40 608.00 1,044.40 6.9% Northborough (partial W) 347.76 396.56 744.32 27.8% Norwood (W/S) 359.52 527.04 886.56 7.4% Peabody (partial W) 265.80 356.40 622.20 0.0% Quincy (W/S) 351.60 582.12 ' 933.72 6.2% Randolph (S) 228.00 448.80 676.80 4.8% Reading (S) 573.60 693.60 1,267.20 5.5% Revere (W/S) 252.00 853.20 1,105.20 13.6% Saugus (W) 374.24 273.96 648.20 8.1% Somerville (W/S) 381.20 646.80 1,028.00 8.4% Stoneham (W/S) 390.00 750.00 1,140.00 5.6% Stoughton (S/partial W) 408.24 780.00 1,188.24 2.5% Swampscott (W) 658.80 432.00 1,090.80 5.8% Wakefield (S/partial W) 456.00 824.00 1,280.00 7.6% Walpole (S) 452.40 575.71 1,028.11 3.8% Waltham (W/S) 256.56 455.64 712.20 0.2% Watertown (W/S) 368.12 661.20 1,029.32 0.0% Wellesley (S/partial W) 280.92 610.80 891.72 2.0% Westwood (8) 515.44 736.00 1,251.44' 3.2% Weymouth (S) 389.28 736.84 1,126.12 9.0% Wilbraham (W) 288.00 315:60 603.60 6.3% Wilmington (S) 409.20 429.60 838.80 10.1% Winchester (S/partial W)* 244.80 259.80 504.60 0.0% Winthrop (W/S) 320.40 621.60 942.00 0.0% Woburn (S/partial W) 160.00 274.00 434.00 17.3% Worcester (partial W) 285.60 298.56 584.16 9.0% AVERAGE $372.29 $572.89 $945.17 6.3% The following communities do not provide municipal sewer services and therefore are not listed: Lynnfield Water District, South Hadley Fire District #1, Southborough and Weston. Arlington and Winchester utilize the debt service exclusion as permitted under General Law 59 Section 21C(n). Page 6 Stir ADVANCIAN REALTY ~ le, A t~cgo 'r+a ' To: The Board of Selectmen 7 From: Mary T. Anastos, President rw Re: Signs on the commons Date: December 9, 2005 What is the opinion of the Board of Selectmen regarding signs on the Common in Reading square? Advancian Realty is the Corporate Sponsor for the Library's House Tour. The Library places a sign on the Common with Advancian Realty on the sign as the Corporate Sponsor. The cost for being their Sponsor is $2,000.00. Last year I was told by the Town Manager that signs on the Common could not have business name on them. Advancian Realty sponsors the Library's House Tour because it is a great fund raiser for the Library and it gives Advancian Realty good community exposure. The Library was so concerned about this last year that when they made up the sign for the Common, Advancian's logo was so small it could not be seen. As a business owner, I hope you agree with me that when any business is a Corporate Sponsor for a fund raiser their name should appear on the sign that is placed on the Common. The Sponsor's name should not overshadow the fund raiser, but should be able to be seen by passers-by. Thank you for your consideration. 21 Mary T. Anastos, President Advancian Realty 2 Haven Street unit 201 Reading, MA 01867 1 J 248 Main Street, Suite 203 Reading, MA 01867 PH 781-944-4224 FX 781-944-7227 www.advancianrealtycom Fi L 1 cP NOTICE OF A PUBLIC INVOLVEMENT PLAN MEETING FORMER AGFA CORPORATION FACILITY 80 INDUSTRIAL WAY C • ~c~5 S~ WILMINGTON, MA Release Tracking Number: 3-17097 Permit Number: W023879 Agfa Corporation received a petition from 10 residents in the Town of Reading requesting this location be designated as a Public Involvement Plan site, in accordance with MGL c.21E §14(a). This law requires that, upon receiving such a petition, a plan for involving the public in decisions regarding response actions must be prepared and a public meeting to present the proposed plan held. Agfa Corporation designated this site as a Public Involvement Plan (PIP) site on November 18, 2005. A public meeting will be held in the Community Room at the Reading Police Station, 15 Union Street, at 7:00 p.m., on December 20, 2005 to present the draft Public Involvement Plan, and to provide an update on response actions at the site. Copies of the draft Public Involvement Plan will be made available at the meeting. Any questions regarding this meeting or the Public Involvement Plan should be directed to Ms. Charlene Graff, Manager, Environmental Health and Safety, Agfa Corporation, 100 Challenger Road, MS 100-5E, Ridgefield, NJ, 07660, at 201-373- 4613, or Charlene.Graff@agfa.com CID s ea• c~ ,2 ~ (C W TRACKING OF LEGAL SERVICES - FY 2006 Monthly Hours $ Month Monthlv Monthlv Hours Cumulative Available Monthlv Monthlv Cumulative Available Hours Hours Used vs Remainder $ 1 Cost Remainder Allocated Used Allocated of 112 vear Allocated Used Year July 76.7 28.2 (48.50) (48.50) 432 $10,350 $3,525 $3,525 $120,675 August 76.7 45.3 (31.40) (79.90) 386.7 $10,350 $5,663 $9,188 $115,013 September 76.7 52.2 (24.50) (104.40) 334.5 $10,350 $6,777 $15,965 $108,236 October 76.7 48.9 (27.80) (132.20) 285.6 $10,350 $6,113 $22,078 $102,123 November 76.7 (76.70) (208.90) 285.6 $10,350 $22,078 $102,123 December 76.7 (76.70) (285.60) 285.6 $10,350 $22,078 $102,123 460.2 174.6 $62,100 $22,078 January 76.7 (76.70) (362.30) 500 $10,350 $22,078 $102,123 February 76.7 (76.70) (439.00) 500 $10,350 $22,078 $102,123 March 76.7 (76.70) (515.70) 500 $10,350 $22,078 $102,123 April 76.7 (76:70) (592.40) 500 $10,350 $22,078 $102,123 May 76.7 (76.70) (669.10) 500 $10,350 $22,078 $102,123 June 76.7 (76.70) (745.80) 500 $10,350 $22,078 $102,123 Subtotal 460.2 0 $62,100 $0 Total 920.4 174.6 -745.8 $124,200 $22,078 $102,1231 Dec 14 05 11:08a Reading Public S 781 942 9149 P.1 L/G g°S Patrick A. Schettini, Jr. Superintendent December 14, 2005 For Immediate Release 82 Oakland Road, Post Office Box 180 Reading, Massachusetts 01867-0280 Telephone 781-944-5800 Fax 781-942-9149 Fire at Reading Memorial High School John F. Doherty Assistant Superintendent Mary C. DeLai Director ofHunzan Resources and Finance This morning at approximately 6:30 a.m. the hose of a propane heater was discovered on fire by a construction worker. The construction worker immediately reported the fire to the Reading Fire and Police Departments who were on the scene in a matter of minutes. The fire was contained to the area of the field house under construction. The fire did not affect any occupied area and did not appear to cause any damage. Due to the timing and impact on parking it was decided to cancel school for the high school students. The faculty and staff remained in the building. School will be in session on Thursday. The fire department remained on scene until it was determined that the fire was contained and extinguished. The Reading Fire and Police Departments, as well as mutual aid from surrounding communities, responded in their typical professional manner. Their concern for the safety and well being of our faculty, staff and students is truly appreciated and the Reading Public Schools thanks them for their continued support and efforts. For more information contact: Patrick A. Schettini, Jr. Superintendent of Schools 781 944-5800 / , IN READING PUBLIC SCHOOLS ADMINISTRATION OFFICES The Reading Public Schools does not discriminate on the basis of race, color, sex, religion, national origin, sexual orientation, age or disability. 6DI ~1WNlTMtINi rn C, A F,4 ~c Home > Reading Advocate > Local News Adopt-a-Family seeks help Herald Interactive Tools By Joanne Senders/ Correspondent _ Thursday, December 8, 2005 Recent articles Need for assistance in Reading is up this holiday season but so is giving by Reading residents, according P4 E-mail article to a friend to Elder/Human Services Administrator Dawn Folopoulos. V'iewaraohicversion This year's Adopt-a-Family program has seen a 25 percent increase in demand while donors have . gone up 20 percent. But with going back to donors and asking them to dig deeper the program is going to Search site be able to fulfill requests for 70 food baskets and gifts and toys for 105 children this Thanksgivinooliday season. Subscribe to Readina Advocate The program which has been around for over 18 years in Reading works by matching anonymous donors with Reading families having a tough time making ends meet. Donors are asked to donate gift baskets for Thanksgiving and/or the holiday. The baskets typically include a ham or turkey, side dishes, desserts and a centerpiece. In addition, donors can offer to purchase gifts for children. While currently all needs seem to be met, Folopoulos said, "I want to encourage people who want to help or have a need, to participate. We do this up to the last minute. We have a hot line set up." People can refer themselves or go through their church. To qualify for the program you must be a Reading resident, still have at least one child in school and demonstrate financial need by having participated in a program such as subsidized housing or food stamps. 'There's no typical recipient," said Folopoulos. "Everyone has their own story." But one family being helped this year is a family with a mom and dad and three children. Both parents work and they live paycheck to paycheck. 'They do OK living this way. They do OK but they're not doing OK enough that they're prepared for a crisis." And so when one of the children became ill the additional medical co-payments, hospital parking fees and lost wages, "totally set them back," said Folopoulos. Donors are a varied group as well. They range from a grandmother who takes. her grandchild shopping for gifts for a needy child the same age, to different civic groups such as the Elks and Women's Club, church, school and scout groups, as well as Town Hall departments and local businesses. Despite the program being totally anonymous, "the donors really go out of their way," said Folopoulos. "In the food baskets are all kinds of extra things to-make it extra special. Donors have developed a caring relationship for these folks. They have heart." Red pients write thank you notes to the donors, but the program also receives thank you notes from the donors who are grateful for the chance to give. "It's such a blessing to experience all the kindness," said Folopoulous, speaking for her. own department "It's a tremendously hectic time - all out - but its all with good heart." In addition to the Adopt-a-Family program the Elder/Human Services Department also coordinates three programs for the elderly for the holidays. "None of these are based on income. They're just for anyone around for the holidays," said Folopoulos. The Young Women's League donates gifts to 25 seniors based on a wish list the Elder/Human Services department puts together. The most requested item from seniors, according to Folopoulos, are slippers. Other items frequently requested include afghans and music. In another program, the Council on Aging delivers 60 hot meals, 30 on Thanksgiving and 30 on December 24. And finally, the Elks Club prepares uncooked food baskets, delivering 10 on Thanksgiving and 10 in December. The Adopt-a-Family hotline is 781-942-6660. For more information on the Elder/Human Services Department, call 781-942-9058. jm I' Feudo, John From: Fennelly, Patrick (SEC) [Patrick. Fennelly@ state. ma. us] C t~G S Sent: Friday, December 09, 2005 11:21 AM 1. ( t To: Feudo, John Cc: Nancy Swain (E-mail) Subject: Resignation 1... u J~/ John, I wish to inform you that I have decided to resign my position on the Recreation Committee. I have taken my position with the committee as an important one that deserves the energy and time to put into it. This last year has been very difficult for me and my family with two prolonged illnesses that are directly related to stress. Since I feel I no longer to can put the time and energy into this position I believe it would be wise for the Board of Selectmen to fill my position with someone who can. I have enjoyed the my time on the committee and was especially honored to spend a year as chairperson of the committee. The relationships that have been formed because of the committee will hopefully last much longer. I am proud of the work the committee has done during my time on it and I look forward to see even better things in the future. I wish the Committee and you John the best in the coming months and years. Sincerely Patrick M. Fennelly Patrick M. Fennelly Web Developer Office of the Secretary of the Commonwealth 1 Ashburton Place, Rm 1711 Boston, MA 02108 P-617-878-3961 C-617-799-5333 patrick.fennelly@sec.state.ma.us 1 ra c-~ ? 6 V Page 1 of 1 L ( C tuf Hechenblefter, Peter From: Paula G [pmgentile@gmail.com] Sent: Wednesday, December 07, 2005 2:07 PM To: Town Manager; Planning Subject: In reference to the Town Meeting on 12-6-05 and possible zoning changes to Jacob Way An open Letter sent to the Town of Reading selectmen, in reference to the Town Meeting on 12-6-05 and possible zoning changes to Jacob Way (Addison-Wesley property). Dear Selectmen: Just to make this clear, up front, I am completely against any proposed zoning change to the Addison-Wesley property, especially one that might involve the development of a shopping plaza. The property, as zoned, has many other possibilities that, with the right developer, can be found. How about townhouses? The development near me called Summit Village is the type of project I would like to see there, even though the traffic from the complex annoys me, it would be manageable. Even a nice hotel like a Marriott product would actually work there, with little impact to the community. This would also generate a great amount of revenue that the town needs, without 'rocking the boat' of our little town. Keep the small park (even expand it!) at the end of Jacob Way and everyone benefits! When I look downtown and see little restaurants and stores proper, I smile. The quaint little center with its Christmas lights, and the old churches, the old cemetery... I smile. This is Reading. Now, selectmen, look down the road, not even a mile away, into Stoneham, and you will see Redstone Plaza and the empty buildings there. Wow. What great revenue that's creating for Stoneham, huh? It's desolate, unattractive, and a waste of money to see that the way it is. Why would we need a shopping plaza with stores that don't even get utilized? And, on the bright side, we have all that we need in terms of food shopping with Shaw's, Stop & Shop, and the Atlantic all within a few miles of each other. The irony, I realized last night, while attending the zoning meeting was held in my hand. I picked up the new 2006 Reading calendar. Filled with nostalgic old photographs of a once great, old-fashioned town that my ancestors loved so much they had come to live, and prosper. I came here thinking I could settle and make it in a nice little town like this, just like my many uncles and cousins have before me. How sad that developments such as this might destroy all that we love about Reading. My message - and I am sure my Reading neighbors feel the same way: Tell these developers Reading is not the place for a "Lifestyle Center" or any type of shopping plaza. Go somewhere else... we are not interested. It's not Reading. Sincerely, Paula Gentile 393 South Street Readuzg, MA pmgentile a,amail.com g0 . 12/9/2005 Hechenbleikner, Peter From: Sent: To: Subject: Hi Peter, Feudo,John Wednesday, December 07, 2005 12:41 PM Hechenbleikner, Peter Memorial Park Playground C .~-d5 FYI. The installation for the Memorial Park Playground will take place in Early April. Gametime had a delay with some of the recycled materials needed to fulfill the Free Installation Grant Requirement (stipulation to get free installation any two pieces of the equipment must come from recycled materials.) So Gametime will be installing the structure for free as promised and stated in our contract as soon as the ground is ready in April. I had hopes of getting it in during November to take advantage of the free installation program. This actually saves us a winter of wear and tear to the playground and it still goes in for free. Best of both worlds. Let me know if you have any questions. John John Feudo Recreation Administrator Town of Reading 16 Lowell Street Reading, MA 01867 (781)942-9075 1 L /,,.c 6 of Hechenbleikner, Peter From: Hechenbleikner, Peter Sent: Tuesday, December 13, 2005 9:28 AM To: Anthony, Camille (W); Bonazoli, James; Schubert, Rick; Schubert, Rick; Tafoya, Ben Subject: FW: Snow Removal FYI From: McIntire, Ted Sent: Monday, December 12, 2005 4:31 PM To: R NoR Chamber Cc: Hechenbleikner, Peter; Richardson, Jim Subject: Snow Removal Carol, We were notified last week that we could not use our previous "snow dump" area this year. We secured another area as of late this morning. Our plan is to push snow off the sidewalks tonight (Tuesday), starting at 11:00 P.M., and remove snow tomorrow night (Wednesday). The snow piles in the parking lots will be removed tomorrow and Wednesday. Sorry for the inconvenience, but we have been working dilligently the last week to find another acceptable area. Ted EA, \ 1 Page 1 of 1 L--'- . C Hechenblefter, Peter From: Camille Anthony [canthony@ftmc.net] Sent: Wednesday, December 07, 2005 1:12 PM To: Reading - Selectmen Subject: FW: WALKERS BROOK CROSSING I had requested this info from Dave for future reference. Camille Anthony -----Original Message----- From: Billard, Dave [mailto:dbillard@ci.reading. ma.us] Sent: Tuesday, December 06, 2005 2:06 PM To: Camille Anthony Subject: WALKERS BROOK CROSSING Ms Anthony, I have attached a spreadsheet showing the FY2006 value and taxes for the Walkers Brook Crossing development. For assessment purposes, the newer retail strip as of the FY2006 assessment date was not 100% complete. It will be assessed as 100% complete for FY2007. I am in the process of securing a copy of the fiscal impact analysis report for the BOA to review at their next meeting. Thanks for your patience while I have been gathering this information for you. DAB 12/9/2005 FY06 TAX FY06 VALUE $19,863 1,644,300 $286,848.06 REST 23,745,700 $213,621.51 MAPILOT CH1LIES OT 17,gg3,900 $103,398 76 51 j_ 2-3& SS4NG LLC' 57 L Z A HOME N DEP S FURNITURE 8,559,500 $623,731.4? 400 A, Rip JoPID OW LKE S ROOK C NC M 57 L 21B STAPLES RFTA4L S-f 1,633, WA DEpQT USA, M 57 L22& ILI- BE 100 /a HOME ITURE, 4NG. W UR OK CROSSING LLC FY2007 ASSESSMENT 30 ?,DA ~S F QMpLFTE' 0 WALKERS BR LESS THAN ()00/0 C FY2006 ASSESMENT Page 1 of.1 L 4 GZ3-v( Hechenbleikner, Peter From: Camille Anthony [canthony@ftmc.net] Sent: Wednesday, December 07, 2005 4:48 PM To: 'Mike Walker'; Reading - Selectmen Subject: RE: Addison-Wesley site Mike: We Camille Anthony -----Original Message----- From: Mike Walker [mailto:mwalker57@verizon.net] Sent: Tuesday, December 06, 2005 6:11 PM To: selectmen@ci.reading.ma.us Subject: Addison-Wesley site Dear Selectmen; I'm writing to express my strong support for the development of the Addison-Wesley site in Reading. I've been a resident for over thirteen years and one of the recurring criticisms I've heard is that the town's tax base is disproportionately residential. This is an(other) ideal opportunity to do something about that. I'm curious though, of the $1.2M of tax revenue that I've read about- 1) is this incremental over the property taxes already generated by the property? 2) what type of support will the town need to provide the site/tenants on a going forward basis, if any - and is the $1.21VI net of these costs. Thanks for all of your hard work. Regards, Mike Walker N~- 12/9/2005 Page 1 of 1 C to Hechenblelkner, Peter From: Greg Jackson [gregj8@comcast.net] Sent: Thursday, December 08, 2005 5:48 PM To: Reading - Selectmen Subject: Addison-Wesley Site Gentlemen, Please tally a "No" vote from me for the proposed new development of the above site. The Panoramic view from my living room now contains a large, pink, neon "Jordan's" sign, something I loathe. We don't need anymore of this type of development in Reading. If I want to live in a "Mall town", I'll move to Burlington Sincerely yours, Greg Jackson 20A Carnation Circle gam. 12/9/2005 Page 1 of 1 L t 1 CV Hechenblefter, Peter From: Musgrave, Win [musgrave.w@bge.battenfeld.com] Sent: Thursday, December 08, 2005 2:43 PM To: Reading - Selectmen Subject: Addison-Wesley Redevelopment My name is Win Musgrave and I am e-mailing you to encourage your support for the Addison-Wesley redevelopment. I feel the town needs to bring in development other than Drug stores and Rental property. The idea of upscale stores and such would be good for the coffers. As for the traffic issue, with the location next to 128, this issue can be worked out. hope you will vote in favor of this project. Regards, Win Musgrave 36 Fremont Street Reading, Ma Winthrop S. Musgrave Senior Repair Parts Sales Battenfeld Gloucester Eng. Co., Inc. Direct Phone: 978-282-9267 Dept. Fax: 978-282-9117 e-mail: musgrave.w@bge.battenfeld.com www.bge.battenfeld.com 12/8/2005 b I c 9 a Hechenbleikner, Peter From: Rosemarie DeBenedetto [mamadetto@yahoo.com] Sent: Friday, December 09, 20051:40 PM To: Reading - Selectmen Subject: Addison Wesley Property To All Our Reading, MA Selectmen: Experts are discussing the flow of traffic in and around the Addison Wesley Property in regards to building a mall at this location. Experts are wrong in many instances, areas, and fields. Experts are incorrect stating that traffic will flow smoothly in an around this area after a mall is built. Traffic will affect the north/south bound flow of Route #28, the off ramp of #128 south, the on ramps of #128 north and south. Traffic will affect businesses located along the southern corridor of Route #28. Can you imagine the nightmare of entering and exiting Colaresso's Farm Stand or the new OVER SIZED GAS STATION which was approved and built on the corner of Hopkins and Main Street? Also, there was "talk" about putting another traffic light at the corner of Main and Hopkins Street have the Experts factored that in when evaluating the flow of traffic? Experts do not live in the southern part of Reading, MA which will bear the brunt of traffic flow throughout all the residential side streets. I also request that you examine closely Reading's property needs. Do not repeat the disastrous decision to sell the TASK land only to have to buy back land to build a road to reach landlocked Reading land Another negative approval was the buildings on West/Washington Street. Why were they approved to be built so closely to the street? Does Reading need land for their various vehicles or for storing large amounts of snow? I request that you do not approve a mall at the Addison Wesley site as it is the wrong project for this property. Rosemarie DeBenedetto 74 Haystack Road Reading, MA 01867 Do You Yahoo!? Tired of spam? Yahoo! Mail has the best spam protection around http://mail.yahoo.com 1 gM~ Page 1 of 1 Hechenblelkner, Peter From: JOHN FERRICK Lpferrick@msn.com] Sent: Monday, December 12, 2005 1:41 PM To: Reading - Selectmen Subject: AddisonWesley Property I have been a resident of Reading for over 32 years. I know things change over time and change is good, but it seems that in the past few years some very large mistakes have taken place in Reading. Namely the development on West Street. All I can think of when I pass is a high priced "Ghetto". Now you want to develop the Addison Wesley property. What are you doing to our Town? See you on January 17, 2005 12/12/2005 Page 1 of 1 t t C Hechenblefter, Peter From: Paula G [pmgentile@gmail.com] Sent: Wednesday, December 07, 2005 11:35 AM To: Reading - Selectmen Cc: Drew Nastri @ Pride Printers Subject: Possible Zoning changes and the Jacob Way proposals Dear Selectmen: Just to make this clear, up front, I am completely against any proposed zoning change to the Addison-Wesley property, especially one that might involve the development of a shopping plaza. The property, as zoned, has many other possibilities that, with the right developer, can be found. How about townhouses? The development near me called Summit Village is the type of project I would like to see there, even though the traffic from the complex annoys me, it would be manageable. Even a nice hotel like a Marriott product would actually work there, with little impact to the community. This would also generate a great amount of revenue that the town needs, without 'rocking the boat' of our little town. Keep the small park (even expand it!) at the end of Jacob Way and everyone benefits! When I look downtown and see little restaurants and stores proper, I smile. The quaint little center with its Christmas lights, and the old churches, the old cemetery... I smile. This is Reading. Now, selectmen, look down the road, not even a mile away, into Stoneham, and you will see Redstone Plaza and the empty buildings there. Wow. What great revenue that's creating for Stoneham, huh? It's desolate, unattractive, and a waste of money to see that the way it is. Why would we need a shopping plaza with stores that don't even get utilized? And, on the bright side, we have all that we need in terms of food shopping with Shaw's, Stop & Shop, and the Atlantic all within a few miles of each other. The irony, I realized last night, while attending the zoning meeting was held in my hand. I picked up the new 2006 Reading calendar. Filled with nostalgic old photographs of a once great, old-fashioned town that my ancestors loved so much they had come to live, and prosper. I came here thinking I could settle and make it in a nice little town like this, just like my many uncles and cousins have before me. How sad that developments such as this might destroy all that we love about Reading. My message - and I am sure my Reading neighbors feel the same way: Tell these developers Reading is not the place for a "Lifestyle Center" or any type of shopping plaza. Go somewhere else... we are not interested. It's not Reading. Sincerely, Paula Gentile 393 South Street g~ 12/9/2005 Page 1 of 1 L C Hechenbleikner, Peter From: William Bennett [BennettW@lynnfield.k12.ma.us] Sent: Thursday, December 08, 2005 10:42 AM To: Reading - Selectmen Subject: FW: Addison-Wesley From: William Bennett Sent: Thu 12/8/2005 10:37 AM To: selectman@ci.reading. ma. us Subject: Addison-Wesley Dear Mr. Bonazoli & Mr. Tafoya, I'm a resident of Reading, MA, and I live on Pine Ridge Ridge Road. I can't think of a worse idea than to build a shopping mall at the Addison-Wesley site. There are many reasons why this is a bad idea, too numerous to go into in an email, however let me just site a few: 1). Traffic is the biggest reason why this plan should not go forward. Traffic on Main and South streets right now is a mess, adding thousands of more cars a day to those roads would be disastrous. West street traffic is congested enough, and it will be even worse once the construction is finished on those apartments on West street. Where do you think all that traffic is going to go? It will funnel itself down Walnut and South streets then on to Main street. Walnut and South streets are cut-threw streets for thousands of cars right now. What do think will happen once this. ridiculous mall is built? I don't want cars cutting through my neighborhood. Cars were detoured down my street (Pine Ridge Road) during the summer and through the fall when West street and Summer Ave were under construction and it was awful. At one end of Pine Ridge there is a park that is used all throughout the year. And at the other end of Pine Ridge you have an elementary school a stone's throw away (Joshua Eaton). I for one, and the people who live on Pine Ridge and the surrounding streets will not put up with such a thing going forward. 2). Downtown will be affected in a negative way. There is all ready too much construction going on in Reading to begin with (Walgreens on main street). If you put a mall at that site downtown will become a ghost town. All the local business will go out of business (think the hardware store that was next to the Atlantic for years until Lowes and Home Depot came in to the area). My wife and I and our three children moved to Reading because of the quality of the town, the schools and the quaint neighborhoods. Now all of sudden there is major construction going on everywhere you turn. If this project goes through, I'll guarantee you Reading will go down the tubes. It will not be the draw that it has been. It will turn in to another Medford, Melrose, or Malden (crime and congestion). People will move out in droves, property values will plunge and then you'll see the schools effected as well (low mcas scores). Please, I implore you, do whatever you can to put a stop to this project. I know that I'm not alone, the overwhelming majority of people of Reading do not support this project. Do the right thing and stop this from happening, and the entire town will be grateful to you. William Bennett Pine Ridge Road 12/8/2005 gZ. Hechenblefter, Peter From: Camille Anthony [canthony@ftmc.net] Sent: Wednesday, December 07, 20051:03 PM To: 'Jay Lenox'; Reading - Selectmen Subject: RE: Traffic / Addison Wesley Jay: We will get back to you with answers to the questions we have info within the next few days. Thanks for your interest. Camille Anthony -----Original Message----- From: Jay Lenox [mailto:jlenox@interactiveprint:com] Sent: Wednesday, December 07, 2005 10:07 AM To: selectmen@ci.reading.ma.us Subject: Traffic / Addison Wesley Reading Board of Selectmen, Thank you for spending time on the Addison Wesley project last night. I am very concerned about the lack of information provided by John Diaz. I understand John was the messenger, but he was unable to answer the simplest traffic questions. It is my understanding John was parroting back the traffic information collected by the applicant. I believe the reason John did not have the Saturday and Sunday traffic figures available is the applicant did not want him to have them. John did not mention the impact and frequency of delivery trucks. Please tell me how much the Town is spending for John's services. I would hope John's company does not get paid until all the requested information is collected and presented to your satisfaction. It is crazy to think of adding 12,000+ cars to the West side of Reading's streets everyday. The whole thing just doesn't smell right. Is this your vision for our Town?? Has the Board been advised by the Police and Fire departments how much impact 12,000 extra cars going through one of the busiest intersections every day in Reading will effect them? If/when there is an accident on Jacobs Way, traffic will back-up through the intersection, onto Main Street and out to Route 128. I think it would be a great service for the Board to make public the list of Reading residents on the payroll of the applicant. Many residents may be sold the concept by neighbors that have a financial interest in the development. Please respond at your earliest convenience. Thank you. Jay Lenox 10 Sylvan Road C - 781-953-4251 1 ~aa Page 1 of 1 Hechenbleikner, Peter From: Sousa, John Sent: Tuesday, December 13, 2005 3:26 PM To: Hechenbleikner, Peter Cc: McIntire, Ted Subject: Recycling Data Peter: Please find a spreadsheet attached with recycling data for the past five years. This is the information that the BOS requested after our rubbish presentation. John 12/14/2005 Town of Reading' Department of Public Works Curbside Recycling Program All figures shown in Tons unless otherwise noted. Total Total Rubbish Rubbish & Percentage Paper Comingled Recycling Disposal Recycling Recycled (A) (B) C= A+B (D) E=C+D F=C/E Fiscal Yr. 2001 1,684.56 387.09 2,071.65 9,882.54 11,954.19 17.3% 2002 1,549.58 462.48 2,012.06 10,001.53 12,013.59 16.7% 2003 1,620.81 423.27 2,044.08 9,410.34 11,454.42 17.8% 2004 1,601.36 446.59 2,047.95 9,940.91 11,988.86 17.1% 2005 1,483.84 391.10 1,874.94 10,095.66 11,970.60 15.7% g~~ Page 1 of 3 L ~ C(3 C") Hechenbleikner, Peter From: Bo or Gina [bogina03@earthlink.net] Sent: Wednesday, December 14, 2005 9:33 AM To: LeLacheur, Bob; Hechenbleikner, Peter; Jamie Maugham; will finch; steve@stephenrlewis.com Cc: Tafoya, Ben Subject: MSNBC.com Article: Costly EPA rules raise city's temper FYI- Here is an article on the Portland Oregon water system that was mentioned last evening. I just got this today from a list-serve that I am on and it seemed timely. -Gina Costly EPA rules raise city's temperAs the Environmental Protection Agency mulls requirements that could boost Portland's water rates by 70 percent-plus, the city stands poised to challenge the decision in court.http://g.msn.coin/ONIN2ET7/2?http://nisnbc.msn.coin/id/10433231 /fron-i/ET/ Costly EPA rules raise city's temper By Andy Giegerich The Business Journal of Portland Updated: 7:00 p.m. ET Dec. 11, 2005 As the Environmental Protection Agency mulls requirements that could boost Portland's water rates by 70 percent-plus, the city stands poised to challenge the decision in court. Kent Craford, a principal with The Gallatin Group's Portland office who represents the Portland Water Users Coalition, said water advocates and the city are ready to sue the EPA if the agency requires the city to install pricey water treatment facilities. The EPA is considering a rule that would force large cities to build filtration plants or use other remedies to help quell potential cryptosporidium outbreaks. Cryptosporidium is a microscopic but lethal parasite that killed more than 100 Milwaukee-area water customers in 1993. Craford and other water-rate watchdogs are interviewing law firms that could take action if the EPA mandates filtration or another treatment. The city would take the lead in the lawsuit at the behest of water customer advocates. City Commissioner Randy Leonard, who oversees the Portland Water Bureau, said the city expects the EPA to rule in favor of requiring expensive filtration systems. Leonard said the city is lining up attorneys to fight the ruling early because tight design timelines would emerge after EPA renders its decision. The EPA's Dec. 15 ruling could determine whether Portland and several other large cities would be forced to either build $200 million-plus filtration plants or use ultraviolet treatments to eradicate potential cryptosporidium outbreaks. The ultraviolet measures would cost around $50 million. 12/14/2005 Page 2 of 3 Another solution involves ozonation, a water treatment process that destroys bacteria and other microorganisms. The solution would cost an estimated $60 million. Plus, as part of the ruling, the city would likely need to cover the reservoirs at Mount Tabor and Washington parks. The project, which drew waves of opposition earlier this decade, could cost another $200 million. The EPA's decision could devastate Portland's businesses because a filtration plant could force the city to raise water rates as much as 76 percent. "The rule could force an unnecessary investment, at an exorbitant cost, in Portland's water system," Craford said. "It could force companies to cut jobs and consider relocating." The Portland Water Users Coalition formed two years ago to fight the potential EPA ruling. Members include companies that use large quantities of water, including laundries, hotels and an ice company. Leonard, Portland Mayor Tom Potter and City Commissioner Sam Adams would all support a suit if EPA requires filtration or other measures. The three have discussed the issue in the past year with Oregon's Senate delegation. Sen. Ron Wyden supports the city in the filtration fight; Sen. Gordon Smith is lukewarm to it, Leonard said. "We're being aggressive about insisting we get assistance from our delegation," Leonard said. "Our more than half-million people shouldn't be forced to pay that money. That's a waste, and we can't afford to do it." The potential EPA rule could force some cities to install systems that remove 99 percent of all bacteria from usable water. The argument against filtration is that Portland's water, from the Bull Run watershed, is pristine because the watershed sits miles from any agricultural or residentially developed properties. Other opposition to the potential EPA ruling comes from officials in New York and San Francisco. Seattle has already installed systems that combat cryptosporidium and other maladies. In Portland, the issue has teamed the commercially vested Portland Water Users Coalition with the left-leaning Friends of the Reservoir collective, which opposes covering the city's open-air reservoirs. Other groups seeking relief from the potential EPA rule include the Oregon Natural Resources Council, the city's Public Utility Review Board, and Portland-based groups Citizens Interested in Bull Run and Citizens for Safe Water. The groups, in an Oct. 5 letter to Leonard, said that the Bull Run watershed needs "no artificial treatment beyond routine chlorination and no filtration beyond that provided by needles from a 700-year-old fir tree." Tests of the watershed show no evidence of cryptosporidium, Craford said. Portland Mayor Tom Potter said earlier this year he'd pursue a waiver if the EPA required the city to add expensive filtration or treatment systems. 12/14/2005 ~G Page 3 of 3 Adams said the city is also bracing for a fight regarding EPA sewage cleanup rules. City administrators said the EPA has changed its treatment rules several times even after Portland implemented expensive programs to meet the agency's goals. Said Adams, "We'll meet the federal requirements. Just let us do it in a cost-effective way." The business-city alliance on the EPA filtration controversy comes as Leonard seeks to involve more businesses in water bureau issues. For instance, several business representatives have joined a water budget planning committee. Craford is a member, as is Marion Haynes, a Portland Business Alliance policy analyst. "It's been a very collaborative process, and it's interesting because it's not only business at the table," said Haynes. "It's a lot of different sections working together in a more meaningful way than we have in the past." Leonard and his staff are also working to create several "hydro parks," which would convert Water Bureau-owned properties into recreational areas. One such park will sit at the bureau's Hazelwood site in East Portland. "The business angle is that businesses tend to pop up around places where people recreate," Leonard said. © 2005 MSNBC.com URL: htto://msnbc.msn.com/id/10433231/ - c00 12/14/2005