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Agreement - University Station pdf file
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Source page 1
COOPERATION AGREEMENT
This Cooperation Agreement (the "Agreement") is made as of this day of August,
2013, between Westwood Marketplace Holdings LLC, Delaware limited liability company, and
having a usual office at do New England Development, One Wells Avenue, Newton,
Massachusetts 02459 ("WMH"), and the Town of Canton, a municipal corporation, acting by
and through its Board of Selectmen (the "Board of Selectmen") and having its usual offices at
801 Washington Street, Canton, Massachusetts (the "Town"). The Town and WMH may be
referred to individually as a "Party" or collectively as the "Parties,"
WHEREAS, WMH is the owner of the property which is currently intended to be
included within the University Station Project (the "Protect"), to be developed on approximately
130 acres in Westwood, Massachusetts, which Project's Master Development Plan, subject to
and in accordance with the terms of the University Avenue Mixed-Use Development By-Law
(the "UAMUD By-Law"), showing the land currently intended to be included within the Project
for purposes of this Agreement is attached as Exhibit A (the "Master Development Plan"); and
WHEREAS, the Town and WMH have undertaken good faith negotiations to resolve any
outstanding issues between the Town and WMH concerning the Project; and
WHEREAS the Town and WMH recognize the importance to the Commonwealth, to the
region, and to the Project that the Dedham Street Corridor Improvements, as defined herein, be
constructed,
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the Parties hereby agree as follows:
1. TRAFFIC MITIGATION AND MONITORING
1.1 Completion of Roodway Improvements Prior to Project Opening— The Parties
agree that certain traffic infrastructure improvements (the "Primary Roadway Improvements")
described on Exhibit B, attached hereto, are required in order to facilitate development of the
Project and to mitigate its impacts. The Primary Roadway Improvements will be implemented
by WMH directly or in coordination with the Commonwealth of Massachusetts and/or the Town
of Westwood, The Town will cooperate with respect to the completion of the Primary Roadway
Improvements, including cooperation with the WMH to obtain all permits and approvals from
any other governmental authority necessary to implement the Primary Roadway Improvements,
The Primary Roadway Improvements must be substantially completed, subject to the terms
hereof, prior to issuance of final certificates of occupancy for the first sequence of the Project as
described in Section 1.4 hereof, The Primary Roadway Improvements shall be deemed
substantially completed if the roadways are sufficient to handle the traffic contemplated to result
from the Project, as set forth in the Project's Notice of Project Change ("NQ") submitted by
WMH in accordance with the Massachusetts Environmental Policy Act (M,G,L, c,30, §§6l -621)
and related regulations ("MEPA").Source page 2
1,2 Blue Hill Drive Ramp — The Town and WMH acknowledge and agree that traffic
infrastructure improvements to the Blue Hill Drive Ramp on Route 93/95 are required in order to
facilitate development of the Project (the "Blue Hill Drive Ramp Work" and are a part of the
Primary Roadway Improvements listed on Exhibit B), The Blue Hill Drive Ramp Work will be
implemented by the Massachusetts Department of Transportation ("MassDOT") and/or other
governmental entities. The Parties acknowledge and agree that the Blue Hill Drive Ramp Work
may be constructed in sequences, which may include interim improvements, as set forth in the
NPC, If the final Blue Hill Drive Ramp Work is not complete prior to the issuance of final
certificates of occupancy for the first sequence of the Project as described in Section 1.4 hereof,
the Parties acknowledge and agree that WMH will encourage MassDOT to complete
construction of the Blue Hill Drive Ramp Work as soon as possible after completion of the other
Primary Roadway Improvements.
1.3 Dedham Street Corridor Improvements. The Town and WMH each acknowledge
the importance and benefits of the construction of the Dedham Street Corridor Improvements as
defined in Section 1.5 of this Agreement to the Commonwealth, to this region, to the Town and
the Project, and accordingly the parties agree to use reasonable efforts necessary and proper to
promote and support the construction of the Dedham Street Corridor Improvements by the
Commonwealth or the United States, or any combination thereof, and to support, jointly and
separately, as may best advance the cause the completion of the Dedham Street Corridor
Improvements. To the extent WMH should, in the future, seek to increase the size of the Project
beyond 2,1 million square feet of development, the Town reserves the right to seek the
imposition in any permit, condition or approval for any aspect of the increased Project or any
mitigation work related thereto, of a condition that the Dedham Street Corridor Improvements be
completed before such increased Project commences.
1.4 Traffic Monitoring — Upon issuance of final certificates of occupancy for the first
sequence of the Project (defined as buildings containing approximately 600,000 square feet of
commercial space and 350 residential units), WMH shall institute a traffic monitoring program
substantially in accordance with the terms of Exhibit 0, attached hereto (the "Traffic
Monitoring") related to the Dedham Street Corridor Improvements. The Traffic Monitoring
shall continue annually thereafter until the earlier of (i) completion of the MassDOT Dedham
Street Corridor Improvement Project (defined immediately below), and (ii) the two-year
anniversary of substantial completion of the Project (defined as approximately 2,100,000 square
feet of development). Notwithstanding anything to the contrary herein, the Town reserves the
right to object and to present rebuttal to MassDOT, prior to the implementation of any such
proposed Alternative Mitigation Plans, as referenced in the attached monitoring condition that
WMH may seek to propose. Furthermore, WMH agrees to (i) consult with the Town and to
undertake a good faith effort to resolve any disagreements with the Town with respect thereto,
prior to submitting Alternative Mitigation Plans, and (ii) invite representatives of the Town to
participate in meetings or calls with MassDOT to discuss any objections or rebuttal the Town
might have to the Alternative Mitigation Plans,
1.5 Dedham Street Corridor Improvement Project — As summarized in the Traffic
Impact Report for the Project, the "Dedham Street Corridor Improvement Project" refers to
MassDOT's project to widen Dedham Street from two to four lanes (to five lanes on the bridge
2Source page 3
over 1-95), including widening of bridges over the Neponset River and MBTA rail tracks,
construct an off-ramp from 1-95 northbound to Dedham Street, and install new traffic signals at
(i) the existing Dedham Street/I-95 southbound on-ramp intersection (to accommodate a left turn
onto the ramp from Dedham Street), (ii) the new Dedham Street/I-95 northbound off-ramp
intersection, and (ii) the existing Dedham Street/Shawmut Road Intersection.
a) Canton Intersection improvements WMH commits to design, construct,
and/or monitor certain traffic improvements in the Town of Canton as part of the
University Station Project (the "Canton Intersection Improvements"), all as described
and shown on the attached Exhibit C, subject to WMH obtaining all permits and
approvals necessary to implement one or more of the Canton Intersection Improvements.
If WMH cannot obtain permits and approvals for a particular intersection included in the
Canton Intersection Improvements, WMH will still commit to designing, constructing,
and/or monitoring other Canton Intersection Improvements for which it does receive
permits and approvals. The Canton Intersection Improvements will be implemented by
WMH. Subject to the terms of Section 1.6 hereof, the Town will cooperate with respect
to the completion of the Canton Intersection Improvements, Subject to the terms of
Section 1,6 hereof, such cooperation will include, without limitation, the grants of such
licenses, work permits and easements, and the implementation of such temporary
measures, as shall be reasonably necessary to allow for completion of the Canton
Intersection Improvements. Subject to the terms of Section 1.6 hereof, the Town agrees
to cooperate with WMH to obtain all permits and approvals from any other governmental
authority necessary to implement the Canton Intersection Improvements. The Canton
Intersection Improvements shall be substantially completed prior to issuance of final
certificates of occupancy for the first sequence of the Project as described in Section 1,4
hereof, The Canton Intersection Improvements shall be deemed substantially completed
if the roadways are sufficient to handle the traffic contemplated to result from the Project,
as set forth in the NPC. To the extent the Dedham Street/Washington Street (as described
in Exhibit C) work does not receive all necessary permits and approvals, after good faith
efforts by the Town (but subject to the terms of Section 1.6 hereof) and WMH, such that
WMH is not required to build the Dedham Street/Washington Street improvements under
its existing permits and approvals, then WMH agrees to make the estimated value of such
improvements ($280,000) available to the Town to fund such improvements or other
Project-related improvements, provided such improvements (i) do not materially
adversely impact the traffic operations in the vicinity of the Project site; and (ii) are not
inconsistent with the permits and approvals, including required mitigation, issued in
connection with the Project.
1.6 Reservation of Governmental Authority—Notwithstanding anything to the
contrary herein, nothing in this Agreement shall be construed in any way to affect, prevent or
otherwise limit the legal authority of any agency, commission or department of the Town
including the Board of Selectmen from hearing and deciding on permitting matters or on other
approvals lawfully before them in connection with the Project pursuant to applicable law or
bylaws, and further nothing in this Agreement shall require any governmental agency to act or
not act beyond the scope of authority as may or may not be granted by the General Court of the
Commonwealth or the scope of authorization as may or may not be voted by town meeting of the
Town
3Source page 4
1,7 Washington Street/Chapman Street — Upon commencement of vertical
construction of a building within the Project (for purposes of this Agreement, vertical
construction shall mean the construction of any permanent above-grade buildings (in excess of
180,000 square feet) pursuant to a building permit issued for the purpose, but specifically
excluding so-called horizontal improvements, which may include, without limitation, any
grading, landscaping, paving, utility installation, environmental remediation, foundation or
similar work), WMH shall deposit Three Hundred Thousand Dollars ($300,000) into a fund (the
"Washington/Chapman Fund") that Canton may use, in its sole discretion, to construct the
Washington Street/Chapman Street Improvements more fully described in Exhibit C; provided,
however, if the Town is unable to secure the necessary rights-of-way required to construct the
Washington Street/Chapman Street Improvements, the Town shall use the Washington/Chapman
Fund to defray any other of the Town's costs and expenses that the Town may incur, at its
discretion, including but not limited to the cost of designing and constructing additional roadway
improvements. WMH and the Town acknowledge and agree that WMH shall not be responsible
for any eminent domain takings or other land acquisition that may be required in connection with
the Washington Street/Chapman Street Improvements. WMH and the Town also acknowledge
and agree that the construction of the Washington Street/Chapman Street Improvements may
vary from the description of such Improvements contained in Exhibit C.
1,8 Circulation Studies Fund Upon commencement of vertical construction of a
building within the Project, WMH shall deposit Fifty Thousand Dollars ($50,000) into a fund
(the "Circulation Fund"), which the Town may use, in its sole discretion, to study local
roadway circulation impacts from the Project or the proposed roadway projects contemplated
herein. WMH shall not oppose the implementation by the Town of any circulation impact
improvements resulting from such study, and the Town's efforts, if any, to obtain all permits and
approvals from any other governmental authority necessary to implement such improvements,
provided such improvement(s) (i) do not materially adversely impact the traffic operations in the
vicinity of the Project site; and (ii) are not inconsistent with the permits and approvals, including
required mitigation, issued in connection with the Project.
2, COOPERATION COMMITMENTS
2.1 MassDOT Section 61 Finding — In connection with review of the Project's NPC,
WMH shall use good faith efforts in working with MassDOT to include in the Project's "Section
61 Finding" to be issued by MassDOT's Highway Division, WMH's commitments set forth in
this Agreement with respect to those portions of the Primary Roadway Improvements under the
jurisdiction of MassDOT, as well as the Canton Intersection Improvements. Notwithstanding the
foregoing, WMII's commitments with respect to the funding of the "Washington Street/Chapman
Street Improvements" listed on Exhibit C hereto shall not be included in the Project's Section 61
Finding, but funds shall be made available as set forth in Section 1.7 hereof,
2,2 Cooperation — The Board of Selectmen and WMH agree to work cooperatively,
on a going-forward basis, to execute and deliver documents, seek permits and approvals from
state (including, without limitation, MEPA and Department of Environmental Protection), county
(including, without limitation, Norfolk County Commissioners, it being understood, however,
that the Board of Selectmen reserves the right to object to any proposal before the Norfolk
4Source page 5
County Commissioners that would change streets to one-way only or permanently obstruct
traffic (e.g., with jersey barriers or like improvements) or that would cause undue delay), and
local authorities, and take such other actions, whether or not explicitly set forth herein, that may
be necessary in connection with the development of the Project ("permits and approvals"),
subject to the provisions of Sections 1.3 and 1.6 hereof, Such potential future actions may
include, without limitation, issuing letters of support in connection with permitting activities, and
at WMH's sole cost and expense, effecting additional eminent domain takings and granting
easement rights as requested by WMH and as may be necessary to complete the Canton
Intersection Improvements and the other improvements described herein or required for the
Project provided that the Board of Selectmen of the Town is properly authorized to do so in
accordance with applicable law, Subject to the provisions of Sections 1,3 and 1.6 hereof, The
Town and WMH acknowledge and agree that the Board of Selectmen's support of the Project
and cooperation shall include but not be limited to the following:
a) Upon execution of this Agreement, the Board of Selectmen agrees that it
will support and will not oppose, appeal, bring an administrative action or suit against, or
otherwise directly or indirectly object to the Project or its off-site mitigation or any
permits and approvals to be issued or required to be issued to WMH and/or for the
development of the Project, provided: (i) that all such permits and approvals are
consistent with the currently approved plans for the Project as such permits and approvals
may be modified consistent with the terms of the Project's Master Development Plan, the
UAMUD By-Law, and this Agreement, so long as the total square footage of the Project
does not increase beyond the currently contemplated 2,100,000 total square feet the
Parties acknowledge that the location of buildings, square footages, mix of uses and
design elements may be altered in WMH's sole discretion pursuant to the terms and
restrictions of the Master Development Plan and the UAMUD By-Law); and (ii) all such
permits and approvals issued or to be issued to WMH are not inconsistent with the plans
for the Dedham Street Corridor Improvements.
b) The Board of Selectmen agrees to exercise, at its discretion, its eminent
domain authority to take such interests in land, and to grant easements, licenses, and/or
rights of entry upon land owned or controlled by the Town, all as may be requested by
WMH and in connection with or required for the construction of the Project as approved
(expressly inclusive of all off-site mitigation improvements), and the fulfillment by
WMH of its obligations set forth herein, at no cost to the Town, provided that it is
authorized to do so as may be required by law. WMH shall indemnify and hold harmless
the Town from and against any and all damage awards, actions, claims, costs, damages,
expenses, reasonable attorneys' fees and expert witness fees arising from its obligations
under this Section 2,2(b).
c) The Board of Selectmen agrees, without limitation of the foregoing, to
cooperate with and not oppose WWI to obtain all permits and approvals from any other
governmental authority, including but not limited to the Norfolk County Commissioners
(it being understood, however, that the Board of Selectmen reserves the right to object to
any proposal before the Norfolk County Commissioners that would change streets to one-
way only or permanently obstruct traffic (e.g., with jersey barriers or like improvements)
or that would cause undue delay), for work contemplated on Canton Street, necessary to
5Source page 6
implement the Canton Intersection Improvements and the overall Project at its current
size of 2.1 million square feet, pursuant to the permits and approvals from, and
agreements with, the Town of Westwood and, without limiting the generality of the
foregoing, shall not appeal any permits and approvals issued to WMH or otherwise with
respect to the Project, or take any other action, directly or indirectly, that would in any
way compromise, obstruct, or impair the ability of WMH to permit and construct the
Project, subject to the provisos set forth in subparagraph (a) of this Section 2.2. Rather,
subject to the terms and conditions set forth herein, the Town shall cooperate fully with
the development efforts of WMH, Further, if and to the extent there are any actions, suits
or letters of objection related to the Project (as previously or now configured) brought by
the Town, the Town agrees to withdraw any such actions, suits or objections associated
with the Project or mitigation work to be performed in connection with the Project,
d) The Board of Selectmen agrees to cooperate with and assist WMH in
obtaining all permits and approvals required from any governmental authority in
connection with the Project, and will issue any permits and approvals and seek such other
relief as may be required from the Town to allow portions of the Project located within
the Town to be used for parking, parking structures, and other improvements, including
buildings, in connection with the Project. Nothing in this Agreement shall be construed
in any way to affect, prevent or otherwise limit the legal authority of ariy agency,
commission or department of the Town from hearing and deciding on permitting matters
or on other approvals lawfully before them in connection with the Project pursuant to
applicable law or ordinance. The Board of Selectmen agree to support such applications
before the aforementioned agencies, commissions and departments and shall inform them
of this Agreement,
3. MISCELLANEOUS
3,1 Project Entrance — The Parties agree that ingress and egress to the Project will be
focused on the Project's "front door" located at the intersection of University Avenue and Blue
Hill Drive, near the Route 128 multi-modal transit station. The Project's amenities, main
identification signage, water features, public park areas and walking trails will be focused at the
front door side of the Project, The Parties acknowledge and agree that the University
Avenue/Canton Street intersection will not be a focus of amenities or serve as the primary access
point to and from the Project.
3.2 Municipal Fund Upon the earlier of (i) commencement of actual vertical
construction of a building at the Project, or (ii) December 31, 2013, WMH shall deposit One
Million Three Hundred Fifty Thousand Dollats ($1,350,000) into a fund (the "Municipal
Fund") to be held by the Board pursuant to M.O.L. c. 44, sec, 53A to defray the Town's costs
and expenses associated with the Project that the Town may incur, including but not limited to
the cost of designing and constructing additional roadway improvements and otherwise to be
used by the Board of Selectmen in its sole discretion. The Municipal Fund shall be inclusive of
the Washington/Chapman Fund and the Circulation Fund and, once funded, the obligations of
WMH under Section 1,7 and 1.8 above shall be deemed satisfied.
6Source page 7
3.3 Reimbursement of Town's Legal Fees Upon execution of this Agreement, WMH
—
shall pay the Town Seventy Five Thousand Dollars ($75,000) for reimbursement of legal and
engineering expenses incurred by the Town in connection with the University Station Project.
3.4 Sidewalks The roadway construction work to be completed by WMH in
—
accordance with this Agreement shall include the installation of sidewalks, subject to the
issuance of all necessary permits and approvals for such sidewalks. All sidewalks to be installed
in fulfillment of WMH's obligations under this Section 3.4 are shown on the plans attached
hereto as Exhibit C, and WMH shall not be required to install any sidewalks other than those
shown on such plans.
3,5 Enforcement and Governing Law This Agreement shall be governed by and
—
construed in accordance with the laws of the Commonwealth of Massachusetts, The failure of
any party to strictly enforce the provisions hereof shall not be construed as a waiver of any
obligation hereunder. The parties agree that any dispute hereunder shall be adjudicated in the
Massachusetts Land Court or Norfolk Superior Court.
3,6 !YAM Release Effective upon the Parties' execution and delivery of this
—
Agreement, WMH, for itself and its successors and assigns (the "WMH Releasors") hereby
waive and release the Town and its officers, directors, agents, employees, and the heirs,
executors, administrators, successors and assigns of each of the foregoing from any and all
claims for payment and any and all losses, expenses, damages, penalties, judgments, costs,
obligations and liabilities of any kind or nature, arising out of the Project. The WMH Releasors
do not release any claims they may have for breach of this Agreement.
3.7 Town's Release Effective upon the Parties' execution and delivery of this
—
Agreement, the Town, its officers, directors, agents, employees, and the heirs, executors,
administrators, successors and assigns of each of the foregoing (the "Town Releasors") hereby
waive and release WMH and its officers, directors, agents, employees, and the heirs, executors,
administrators, successors and assigns of each of the foregoing from any and all claims for
payment and any and all losses, expenses, damages, penalties, judgments, costs, obligations and
liabilities of any kind or nature, arising out of the Project. The Town Releasors do not release
any claims they may have for breach of this Agreement,
3.8 Modifications No amendment of any provision of this Agreement shall be valid
—
unless the same shall be in writing and signed by all Parties,
3.9 Force Majeure If WMH is prevented from performing its obligations hereunder
—
by an event offorce majeure, it shall be temporarily excused from performing hereunder for the
duration of theforce mctjeure event and shall not be liable in damages or otherwise arising from
such force majeure event, and the parties instead shall negotiate in good faith with respect to
appropriate modifications to the terms hereof. For purposes of this Agreement, the termforce
majeure shall mean any cause beyond the reasonable control of the affected party, including
without limitation requirements of statute or regulation not adopted as of the date of this
Agreement; action of any court, regulatory authority, or public authority having jurisdiction; acts
of God, fire, earthquake, floods, explosion, war, terrorism, riots, mob violence, inability to
procure or a general shortage of labor, equipment, facilities, materials or supplies in the open
7Source page 8
market, failure of transportation, strikes, lockouts, actions of labor unions, condemnation, laws or
orders of governmental or military authorities, denial of, refusal to grant or appeals of any
permit, approval, or action of any public or quasi public authority, official, agency or
subdivision, or any other cause similar to the foregoing, not within the reasonable control of such
party obligated to perform such obligation. The Parties acknowledge and agree that no payments
otherwise due or obligations otherwise required under this Agreement shall be required so long
as construction of the Project is delayed or prevented in connection with, or as the result of, any
appeal of any necessary permit or approval. For purposes of this Agreement, permits and
approvals shall be deemed obtained if (i) such permits and approvals are not appealed and are
final, or such appeal has been resolved to WMH's satisfaction; and (ii) such permits and
approvals are subject to conditions reasonably acceptable to WMH. If the Town is unable, due to
Section 1,6 hereof, to fulfill its obligations under this Agreement, the Town and WMH agree to
(1) consult in good faith regarding ways to advance issues important to the Town, region,
Commonwealth, and the Project consistent with the spirit of this Agreement, and (ii) work in
good faith to modify or re-state this Agreement in a way that is consistent with the spirit of this
Agreement and within the Town's authority.
3,10 Obligations Not Personal — The obligations of WMH do not constitute personal
obligations of WMH or of the members, trustees, partners, directors, officers or shareholders of
WMH, or any direct or indirect constituent entity of WMH or any of its or their affiliates or
agents, and the Town shall not seek recourse against any of the foregoing or any of their personal
assets for satisfaction of any liability with respect to this Agreement or otherwise. The liability
of WMH is in all cases limited to its interest in the Project site. In no event shall WMH be liable
for any incidental, indirect, punitive, special or consequential damages, Similarly, the
obligations of the Town do not constitute personal obligations of individual members of the
Board of Selectmen or of any officers or employees of the Town, and WMH shall not seek
recourse against any of the foregoing individuals or any of their personal assets for satisfaction
of any liability of the Town with respect to this Agreement or otherwise, In no event shall any
individual members of the Board of Selectmen or any officers or employees of the Town be
liable for any incidental, indirect, punitive, special or consequential damages. In the event any
party succeeds to all or any portion of WMH's rights and obligations hereunder by transfer,
assignment or otherwise, such succession shall be effected pursuant to a written agreement
whereby the transferee is responsible for all applicable obligations or liabilities arising from and
after the date of assignment, and WMH is responsible (except to the extent assumed by
transferee) for all applicable obligations or liabilities arising prior to the date of assignment, and
a copy of such written agreement shall be provided to the Town. Following execution of such
written agreement, the Town agrees that it shall look to the transferee and not WMH with respect
to any applicable obligations or liabilities in accordance with the terms of the assignment,
311 Entire Agreement — This Agreement reflects the entire agreement of the Parties
with respect to the matters contained herein, and supersedes all prior or existing negotiations,
representations, or agreements, and all other oral, written, or other communications between
them concerning the subject matter of this Agreement.
3,12 Successors and Assigns — Without limiting any provisions in this Agreement, it is
expressly acknowledged and agreed that the obligations hereunder shall apply to, and be
enforceable against, only WMH and its successors and assigns, and no third-party developer,
8Source page 9
owner, tenant, or other person or entity shall be liable for the performance or breach of any
obligations hereunder, In no event shall the Town assign its rights or obligations under this
Agreement without the prior written consent of WMH, in its sole discretion,
3,13 Counterparts — This Agreement may be executed in several counterparts and by
each party on a separate counterpart, each of which when so executed and delivered shall be an
original, and all of which together shall constitute one instrument. It is agreed that electronic
signatures shall constitute originals for all purposes.
3,14 Notices — All notices required or permitted hereunder shall be in writing and
addressed as follows:
Board of Selectmen
Town of Canton
801 Washington Street
Canton, MA 02021
Attention: William Friel, Town Manager
With a copy to:
Paul R. DeRensis, Esquire
Deutsch, Williams, Brooks, DeRensis & Holland, P.C.
One Design Center Place
Suite 600
Boston, MA 02210
If to Westwood Marketplace Holdings LLC to:
Westwood Marketplace Holdings LLC
c/o New England Development
One Wells Avenue
Newton, MA 02459
Attention: Steven S. Fischman, President
With a copy to Escrow Agent; if to Escrow Agent to:
John E. Twohig, Esquire
Goulston & Storrs, P.C.
400 Atlantic Avenue
Boston, MA 02110
Each party shall have the right by notice to the other to designate additional parties to
whom copies of notices must be sent, and to designate changes in address, Any notice shall have
been deemed duly given if mailed to such address postage prepaid, registered or certified mail,
return receipt requested, on the date the same is received or when delivery is refused, or if
9Source page 10
delivered to such address by hand or by nationally recognized overnight courier service, fees
prepaid, when delivery is received or when delivery is refused.
3.15 No Obligation To Build Nothing in this Agreement shall be construed as an
undertaking or obligation by WMH to commence or complete the Project, any component of the
Project, however, if actual commencement of vertical construction of the Project is commenced
by WM1-1, subject to the provisions of Section 3.9 hereof, then it is the intent to bind WW1 to
complete the mitigation in connection therewith described in this Agreement, including but not
limited to implementing its support of the Dedham Street Corridor Improvements,
3.16 Town Reservation of Rights — Notwithstanding any provision herein to the
contrary, the Town reserves all rights with respect to the Project if and to the extent the Project
size expands beyond 2.1 million square feet and there are any additional impacts upon the Town
of Canton arising from such expansion.
3.1_7, Authority— Each Party confirms for the other that it has all necessary power and
authority to enter into this Agreement and be bound by the terms hereof,
3,18. Estoppels — Upon request by one Party, the other Party shall reasonably promptly
provide an estoppel certificate in substance and form reasonably acceptable to such Party and its
counsel confirming that the requesting Party is in compliance with the terms and conditions of
this Agreement as the requesting Party may reasonably request.
(Remainder of Page Intentionally Left Blank)
10Source page 11
Executed as a sealed instrument as of the date first set forth above,
THE TOWN OF CANTON, ACTING BY AND
THROUGH ITS BOARD OF SELECTMEN
By:
WEST WOOD MARKETPLACE HOLDINGS LLC, a
Delaware limited liability company
By: Westwood Station Developer LLC,
a Delaware limited liability company,
its Manager
By: NED Westwood Station LLC, a Delaware
limited liability company,
its Manager
By; NED Manager LLC, a Delaware limited
liability company,
its Manager
By:
4 s Manager
11Source page 12
EXHIBIT A
Master Development Plan
Please see attached.
12Source page 13
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EXHIBIT B
Primary Roadway Improvements
The Primary Roadway Improvements include the following:
a) Blue Hill Ramp Work — Construction of the Blue Hill Drive ramp system (to be
constructed by MassDOT); WMH will provide land to MassDOT, at no cost to
MassDOT, to allow construction of the Blue Hill Drive ramp system
b) University Avenue Work — Reconstruction, widening, and signalization of University
Avenue as a 4+ lanes, median divided, frontage road, with coordinated signals to
facilitate the am/pm peak movements along University Avenue
c) University Avenue/Canton Street Intersection — Reconstruction, widening, and
signalization of the University Avenue/Canton Street Intersection, including, on
University Avenue, two (2) Northbound lanes to encourage flee-flow traffic traveling
north/west on Dedham Street to utilize University Avenue for access to I95, Project,
MBTA
d) Harvard Street/Rosemont Road Work — Reconstruction and widening of, as well as
the installation of sidewalks and utilities along, Harvard Street and Rosemont Road
13Source page 15
EXHIBIT C
Canton Intersection Improvements
Please see attached.
Note: WMH acknowledges and agrees that whenever the Canton Intersection Improvements call
for re-paving, such re-paving shall be done "curb to curb" rather than as patching.
WORK LIST
Responsible Party
. for Design and
Location ScoRe of Work .. Construction
1,Dedham
Street/Washington
Street
Design and construct a 100 foot long right-turn lane on the Westwood
Dedham Street approach including all associated signs and Marketplace
pavement markings, Holdings, LLC
Repave Dedham Street within the limits of construction activities
associated with the addition of the right-turn lane,
— Reconstruct the exiting traffic signal system as may be necessary
to accommodate the proposed improvements including all
necessary traffic signal equipment and appurtenances.
— Design and implement an optimal traffic signal timing, phasing
and coordination plan.
2, Route
138/Wask *ton
Street
— Maintain/replace/upgrade existing signs and pavement markings Westwood
at and in advance of the intersection (within 250 feet), Marketplace
Install pedestrian crossing warning signs at and in advance of the Holdings, LLC
intersection,
Trim vegetation along the West side of Route 138 north of
Washington Street to improve sight lines.
Relocate the "Alfredo Aiello" restaurant sign subject to receipt of
permission by the owner,
14Source page 16
WORK LIST (CONTINUED)
Lova tion Seo e of Work Res onsible Part
3, Route
1.38/Randolph
Street
— Design and construct left-turn lanes on both Route 138 Westwood
approaches to Randolph Street. Marketplace
— Repave Route 138 within the limits of construction activities Holdings, LLC
associated with the addition of the left-turn lanes.
— Relocate the stop-lines on the Randolph Street approaches
approximately 10-feet back from the intersection in order to
accommodate truck turning maneuvers.
— Reconstruct the exiting traffic signal system as may be necessary
to accommodate the proposed improvements including all
necessary traffic signal equipment and appurtenances.
— Design and implement an optimal traffic signal timing and
phasing plan to include concurrent pedestrian phasing,
4. Route
138/Green Lodge
Sired
— Monitor traffic volumes, operating conditions, and safety at the Westwood
intersection on an annual basis commencing upon initial Marketplace
occupancy of University Station and continuing for a period not Holdings, 1,LC
to exceed 2-years after project completion. The monitoring
program will include a detailed traffic signal warrants analysis
and will be provided to the Town of Canton within 2-months of
the completion of the traffic counts.
— If warranted and desired by the Town, prepare detailed design
plans, up to and including MassDOT 100 Percent/PS&E design
level (or equivalent), for geometric and traffic signal
Improvements at the intersection. The design plans will be
provided to the Town. .
15Source page 17
WORK LIST (CONTINUED)
Location Scope of Work Responsible Part
S. Dedham
Street/Shamnut
Road
- Design and construct a right-turn lane on Shawmut Road Westwood
approaching Dedham Street including all necessary signs and Marketplace
pavement markings. Holdings, LLC
- Repave Shawmut Road within the limits of construction activities
associated with the addition of the right-turn lane.
6. Dedhaln
Slreet/Elm Street
- Monitor traffic volumes, operating conditions, and safety at the Westwood
intersection on an annual basis commencing upon initial Marketplace
occupancy of University Station and continuing for a period not Holdings, LLC
to exceed 2-years after project completion. The monitoring
program will include a detailed traffic signal warrants analysis
and will be provided to the Town of Canton within 2-months of
the completion of the traffic counts,
Tf warranted and desired by the Town, prepare detailed design
plans, up to and including MassDOT 100 Percent/PS& design
level (or equivalent), for geometric and traffic signal
improvements at the intersection. The design plans vI11 be
provided to the Town.
7 Neponset
Street/Chapman
Street
- Design and implement an optimal traffic signal timing plan to Westwood
Include all necessary traffic signal equipment and appurtenances Marketplace
requited to implement the traffic signal timing improvements. Holdings, LLC
16Source page 18
WORK LIST (CONTINUED)
Location Sco e of Work • Res onsible Part
8, Washington
Street/Chapman
Street
— Monitor traffic volumes, operating conditions, and safety at the Westwood
intersection on an annual basis commencing upon initial Marketplace
occupancy of University Station and continuing for a period not Holdings, LLC
to exceed 2-years after project completion. The monitoring
program will include a detailed traffic signal warrants analysis
and will be provided to the Town of Canton within 2-months of
the completion of the traffic counts,
— Prepare and deliver to the Town by December 31, 2013 concept
plans and supporting traffic analysis. The conceptual design
plans will reflect existing property lines and any proposed areas
of taking. WMI-1 will use reasonable efforts to complete and
provide the Town with final design documents (plans,
specifications, and estimate) by June 30, 2014. The design will
be completed in accordance with MassDOT standards if and as
required.
* * * * * * * * * * * * * * * * * * *
The Town may elect, with $300K in additional funding provided
by WHM, to undertake the following:
— Roadway improvements will include roadway widening to
provide additional lane capacity and repaving within limits of
work. Drainage and utility modifications to accommodate
roadway widening will be included as necessary.
— Install a traffic signal system including all necessary traffic signal
equipment and appurtenances.
—Update pavement markings and signal to reflect updated traffic
. control.
— Design and implement an optimal traffic signal timing, phasing
and coordination plan,
17Source page 19
Notes:
1. Where indicated, the stated improvements will be designed and constructed by Westwood
Marketplace Holdings, LLC subject to receipt of all necessary rights, permits and approvals per
the Cooperation Agreement, as may be necessary to complete the improvement measures.
2. The acquisition of private property is not anticipated to be necessary to construct the defined
roadway, intersection and traffic control improvements. Should such acquisitions be requested,
it is expected that the Town of Canton will, subject to the terms and conditions of the
Cooperation Agreement, effectuate or otherwise facilitate the necessary acquisitions at the sole
expense of Westwood Marketplace Holdings, LLC,
3. Improvements to an existing traffic signal will include the design and installation of all
equipment and appurtenances required to implement the improvements and to comply with
current State and Federal standards for pedestrian, bicycle and handicapped accessibility.
Subject to the terms and conditions of the Cooperation Agreement, any approvals required from
the Town of Canton necessary to complete the improvements or to advance the associated design
plans or related studies shall not be unduly delayed or withheld.
18Source page 20
EXHIBIT D
Dedham Street Corridor Traffic Monitoring Program
In connection with the University Station project (the "Project"), WMH will monitor
traffic volumes and operating conditions along the Dedham Street corridor between University
Avenue in Westwood (there known as Canton Street) and Elm n Street in Canton. The monitoring
program shall include the following elements:
1. 24-hour, 7-day, automatic traffic recorder counts on Dedham Street east and west of 1-95,
2. Manual turning movement counts (TMCs), vehicle classification counts, and vehicle
queue observations for a two-hour weekday morning period (7:00 to 9:00 AM), a two-
hour weekday evening period (4:00 to 6:00 PM), and a three-hour Saturday midday
period (11:00 AM to
2:00 PM) at the following intersections:
Canton Street at University Avenue
— Dedham Street at Granger Drive
— Dedham Street at University Road
— Dedham Street at Cumberland Farms Drive
— Dedham Street at the 1-95 southbound on-ramp
— Dedham Street at Shawmut Road
— Dedham Street at Elm Street
3, Collection of travel time and operating speed information during the weekday morning
(7:00 to 9:00 AM), weekday evening (4:00 to 6:00 PM), and Saturday midday (11:00 AM
to 2:00 PM) periods by direction for travel along the following roadway segments:
— Dedham Street, Elm Street to the 1-95 southbound on-ramp
— Dedham Street, 1-95 southbound on-ramp to University Road
— Canton Street, University Avenue to Neponset River Bridge
The results of the Traffic Monitoring shall be summarized in annual reports provided to
MassDOT, copies of which shall be provided to the Town, within three (3) months of the
completion of the data collection effort and shall include a detailed traffic operations analysis for
both the Dedham Street corridor and the intersections within the monitoring area based on the
collected data (traffic volumes, vehicle queue observations, travel time and operating speed). If
after a review of the collected data and associated analysis, it is determined in writing by
MassDOT, that site traffic exceeds the capacity of the Dedham Street corridor, then WMH will
limit further occupancy of the Project beyond 1,100,000 square feet of commercial space
(excluding residential and assisted living developments, and without affecting any improvementsSource page 21
that are already completed) until such time as (i) the MassDOT Dedham Street Corridor
Improvement Project is substantially complete, or (ii) WMH provides MassDOT with an
alternative mitigation plan ("Alternative Mitigation Plans") to address the identified capacity
issues which Plan is acceptable to MassDOT in its sole discretion, Notwithstanding the
foregoing, if MassDOT limits the Project in MassDOT's Section 61 Finding for the Project to
less than the 1,100,000 square feet as described above, then Canton shall have the benefit of the
more restrictive limitation for the purpose of limiting occupancy of the Project pursuant to the
foregoing,