Canton, Massachusetts · Saved source text
Mitigation Agreement - Stoughton pdf file
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Source page 1
ASSIGNMENT OF CONTRACTS AND CLAIMS
This Assignment of Contracts and Claims (the "Assignment") is made as of the i") day
of December 2009 by and between TOWN OF CANTON ("Canton") and TOWN OF
STOUGHTON ("Stoughton") (together the "Assignors") and the STOUGHTON SEWER TIE-
IN, LLC (the "Assignee").
WITNESSETH THAT:
WHEREAS, the Town of Stoughton and the then Trustees of Canton Technology Center
Trust ("Trust") entered into an agreement dated February 28, 1989 and titled "Agreement for
Waste Water Collection Between the Town of Stoughton and Trustees of the Canton Technology
Center Trust" ("Wastewater Collection Agreement"), under which the Town of Stoughton agreed
to receive into its wastewater system at the Turnpike Street Pumping Station wastewater from the
Canton Technology Park (the "Park") and the Trust agreed to pay for its use of said wastewater
system. (The Wastewater Collection Agreement is attached hereto as Exhibit A.)
WHEREAS, the Town of Canton and the Town of Stoughton entered into an agreement
dated February 28, 1989 and titled "Agreement" (the "Canton Collection Agreement"), under
which the Town of Canton agreed to render payment to the Town of Stoughton of all unpaid
sewer use charges assessed to the Trust and to enforce collection of the charges. (The Canton
Collection Agreement is attached hereto as Exhibit B.)
WHEREAS, the Town of Canton and the then Trustees of the Trust entered into an
agreement dated February 28, 1989 and titled "Agreement" (the "Covenant Agreement"), under
which the parties agreed, among other things, to subject the Park to a protective covenant to the
effect that, "if the Trustees fail to pay their sewer use charges, then a court ... may enter an order
against the Trustees for the amount of said sewer use charges and any reasonable costs and
attorneys fees incurred by Canton in enforcing the covenant." (The Covenant Agreement is
attached as Exhibit C.)
WHEREAS, the Town of Canton and the then Trustees of the Trust entered into a second
agreement dated February 28, 1989 and titled "Agreement" ("Construction Agreement"), under
which the parties agreed to the terms of construction of a private sewer line to connect the Park
the Town of Stoughton's wastewater system. (The Construction Agreement is attached as
Exhibit D.)
WHEREAS, Assignors have agreed to assign to the Assignee all of Assignors' rights
under the Wastewater Collection Agreement, the Canton Collection Agreement, the Covenant
Agreement and the Construction Agreement (together the "Contracts").
WHEREAS, the Trustees of the Canton Technology Center Trust at the time of the
execution of the Contracts were Terence W. Conroy ("Conroy"), Lewis Heafitz ("Heafitz") and
Gerard L. Schmitt ("Schmitt").
WHEREAS, the Town of Canton filed lawsuit against Conroy, Heafitz and Schmitt in
their capacities as individuals and as trustees of the Trust, which is captioned Town of Canton v.
Trustees of Canton Technology Center Trust, et al., Norfolk Superior Court, C.A. No. 08-01993Source page 2
(the "Lawsuit") and has agreed to assign its rights to pursue the claims asserted therein to
Assignee.
NOW, THEREFORE, in consideration of the covenants and agreements herein contained
and for other good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, Assignors and Assignee hereby agree as follows:
1. Consideration. In consideration for the Assignments and relinquishment of rights
by the Town of Stoughton and Town of Canton, detailed herein, the Assignee agrees to pay
$200,000.00 to Stoughton, and other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged.
2. Assignment of Contracts Claims. Assignors hereby assign, convey, sell, transfer
and deliver to Assignee, its successors and assigns, and the Assignee does hereby accept from
Assignors, all of Assignors' right, title and interest in, to and under the Contracts, including,
without limitation, the right to assert claims, at the sole discretion of the Assignee, against the
Trust, or Conroy, Heafitz and/or Schmitt in their individual capacities and/or in their capacities
as trustees of the Trust to recover any and all sums due the Towns under the Contracts through
the date of this Assignment of Contracts and Claims. This Assignment is limited to rights that
arose from sewer usage occurring prior to the date of this Assignment. To the extent that the
Contracts give rise to claims by one Assignor against the other, those claims are specifically
excluded from this assignment and are hereby waived, released, and extinguished by agreement
of both Assignors.
3. Assignment of Lawsuit. The Assignors hereby assign, convey, sell, transfer and
deliver to the Assignee, its successors and assigns, and the Assignee does hereby accept from
Assignors, all of Assignors' right, title and interest in all claims that Canton asserted against
Conroy, Heafitz and Schmitt in the Lawsuit. As provided by Mass. R. Civ, P. 25(c), Assignee
may continue to pursue the lawsuit in the name of Assignor.
4. Covenant Not to Sue. Assignors hereby agree that they shall not hereafter seek
recovery from the Trust or its present or former trustees or Conroy, Heafitz or Schmitt,
individually, for any use of Stoughton's wastewater system by any person or entity that has tied
into said system from the Park. Any such rights may now only be asserted by Assignee. The
Assignors hereby agree that they shall not hereafter seek recovery from one another for any
claims that may arise from the Contracts.
5. Termination of the Contracts. By this Assignment, the parties agree that the
Contracts shall terminate as of the date of the execution of this Assignment. This termination
shall not release or otherwise affect any obligations for amounts due by the Trust or Conroy,
Heafitz or Schmitt in capacities as individuals or Trustees of the Trust prior to the date of this
Assignment.
6. Intermunicipal Agreement Between Canton and Stoughton. On or about
September 1, 2009, the Assignors entered into a contract titled Intermunicipal Agreement
between Town of Stoughton and Town of Canton for Provision of Sewer Service (the
"Intermunicipal Agreement"). (A copy of the Intermunicipal Agreement is attached hereto as
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Exhibit E.) The Assignors hereby confirm that the Intermunicipal Agreement, among other
things, extinguishes the rights of the Assignors, and their successors and assigns, under the
Contracts to recover from Conroy, Heafitz and/or Schmitt, in their capacities as individuals or as
Trustees of the Trust, for sewer service to the property in Canton, Massachusetts known as
Canton Technology Park, for the period from the date of the execution of the Intermunicipal
Agreement forward. The Assignors expressly confirm that the Intermunicipal Agreement is not
intended to affect any rights under the Contracts or the Lawsuit to collect unpaid charges from
Conroy, Heafitz and/or Schmitt, in their capacities as individuals or as Trustees of the Trust
under the Contracts or the Lawsuit that became due prior to the execution of the Intelinunicipal
Agreement.
7. Representations and Warranties. The Assignors hereby represent and warrant to
the Assignee: (a) the Assignors are the sole owners of the entire unencumbered interests in all of
the Contracts and the Lawsuit; (b) the Assignors have not executed any prior assignment or
pledge of any rights under the Contract or Lawsuit or any other rights hereby assigned; (c) there
have been no amendments, alterations or modifications of any of the Contracts; (d) each of the
Contracts is in full force and effect as of the execution of this Assignment; and (e) Assignors
have the right, power and authority to make and enter into this Assignment.
8. Acceptance of Risk. By acceptance of the assignment of the Contracts and
Lawsuit pursuant to the foregoing paragraphs, the Assignee hereby accepts all risk associated
with the Lawsuit, including, but not limited to, costs associated with litigation, and shall be
solely liable, and hereby agrees to pay, any settlement, judgment, attorney's fees, or award
relating to or resulting from the Lawsuit or claims asserted by the Assignee under the Contracts
which may be assessed or rendered against the Assignors or the Assignee as Assignors'
successor in interest hereunder, as the case may be. The Assignee hereby agrees to defend and
indemnify Assignors against any and all claims that are asserted by any third party against
Assignors arising from or relating to the Contracts. In such event, Assignors shall have no
liability or obligation to Assignee or any other third party in connection with the payment of any
monies due and owing under the Claims.
9. Release of Claims between Assignors. For mutual consideration, the receipt of
which is hereby acknowledged by both Assignors, the Assignors for themselves, their heirs,
successors, and assigns, for good and valuable consideration, hereby release, remise, acquit, and
discharge one another, and each other's respective past, present, and future officers, employees,
officials (whether elected or appointed) and each other's respective heirs, successors or assigns
(collectively, "Releasees"), of and from any and all manner of actions, claims, counterclaims
demands, causes of action, liabilities, obligations, suits, debts, dues, accounts, reckonings, costs,
losses, expenses, and damages of whatever nature or source, in law or in equity, whether known
or unknown, accrued or unaccrued, direct, indirect, or consequential, that the Assignors ever had,
now have, or which they hereafter can, shall, or may have against one another by reason of
anything done or omitted or by reason of any matter, cause, thing, or event whatsoever, from the
beginning of the world to the date of the final execution of this Agreement, relating in any
manner to the Contracts.
10, Cooperation. The Assignors agree to cooperate with Assignee, and its respective
officers and designated representatives, to the extent that Assignee deems reasonably necessary
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to the successful pursuit of claims asserted under the Contracts or the Lawsuit, and any appeals
taken in, Lawsuit, or any other action that may hereafter be initiated by the Assignee, including
giving testimony or producing records and documents whenever reasonably required.
11. Binding Effect. This Assignment shall inure to the benefit of and shall be binding
upon the parties hereto and their respective successors and assigns.
12. Governing Law. This Assignment shall be governed by and construed in
accordance with the laws of the Commonwealth of Massachusetts without giving effect to any
choice or conflict of law provision or rule (whether of the Commonwealth of Massachusetts or
any other jurisdiction) that would cause the application of the laws of any jurisdiction other than
the Commonwealth of Massachusetts.
13. Counterparts. This Assignment may be executed in any number of duplicate
counterparts, each of which shall be deemed an original, but all of which together shall constitute
one and the same instrument.
IN WITNESS WHEREOF, Assignors and Assignee have executed this Assignment as of
the date above written.
ASSIGNOR: ASSIGNOR:
TOWN OF CANT TOWN OF STOUGHTON
Acting by its Bt Selec Acting by its Board of Selectmen
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ASSIGNEE:
STOUGHTON SEWER TIE-IN, LLC
By:
Its sole member
Conroy Development Corporation
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