North Commons - Appraisal.pdf
North Commons October 31, 2019
Exhibit 3:
Market Information
3.2 As Is Appraisal:
Attached please find an appraisal from Newmark Knight Frank issued for the 33.8 acre land parcel North
of Ford Crossing which will be acquired by the to‐be‐formed Owner Entity of North Commons. As noted
in the appraisal, prior to acquisition, the City of Northampton will construct necessary infrastructure
improvements which will enable the North Commons project to proceed. The post‐completion valuation
of the land with infrastructure is anticipated to be $2,010,000, per the attached report, which supports
the $1,880,000 acquisition fee per the Land Disposition Agreement with MassDevelopment.
Vacant Land Parcel
North of Ford Crossing Rd/Orlander Dr.
Northampton, Hampshire County, MA 10060
NKF Job No.: 19-0008781
Appraisal Report Prepared For:
Ms. Rachana Crowley
The Community Builders
31 Trumbull Road
Northampton, MA 01060
RCrowley@tcbinc.org
Prepared By:
Newmark Knight Frank
Valuation & Advisory, LLC
2410 North Forest Road, Suite 204
Amherst, New York 14068
Newmark Knight Frank
2410 North Forest Road, Suite 204
Amherst, New York 14068
www.ngkf.com
October 31, 2019
Ms. Rachana Crowley
The Community Builders
31 Trumbull Road
Northampton, MA 01060
RCrowley@tcbinc.org
RE: Appraisal of a vacant land parcel located North of Ford Crossing Road and Olander Drive
by Newmark Knight Frank Valuation & Advisory, LLC (herein “Firm” or “NKF”)
NKF Job No.: 19-0008781
Dear Ms. Crowley:
Newmark Knight Frank Valuation and Advisory, LLC (herein “Firm” or “NKF”) has developed an
appraisal of the referenced property and the results are presented in the following Real Estate
Appraisal Report.
The subject of this appraisal assignment includes a site that is part of the Village Hill
Development; a planned development that includes a mix of housing, and
commercial/community service development. Specifically, this part of the project includes what
is identified as parcels A/D and E (on the maps presented, it is important to note that only these
parcels are considered in the analysis). Only A will be developed; a total of 4.88 Acres that will be
constructed with a total of 53 multi-family units targeting a mixed income population. Parcel D
(north of the A development parcel) has 18.5 Acres, and E (East of the development parcel) with
10.42 Acres. These parts of the development will be retained as conservation land and will not
be developed.
The site is vacant but is development ready. It is part of the Planned development district and the
zoning is PV. Approvals are in place for the units and infrastructure is ready for the development
to be initiated but there is infrastructure required for access.
The parcel is under a Land Disposition Agreement to be sold from Hospital Hill Development, LLC
to The Community Builders, Inc. for $1,900,000 which includes part of a separate development
parcel; the amount allocated to the land to be part of this development is $1,880,000. This
agreement includes other land being developed.
October 31, 2019
Ms. Rachana Crowley
Vacant Land Parcel
Key Value Considerations
Strengths
Desirable location within a Planned development near the area colleges.
Proximity to commercial needs/necessities.
Zoning and infrastructure for utilities in place
Risk Factors
Median income and rent limitations
Limited development activity evident in the region
Based on the anaysis contained in the following report, the opinion of value for the subject is:
Value Conclusion
Appraisal Premise Interest Appraised Date of Value Value Conclusion
Market Value "As Is" Fee Simple 10/21/2019 $1,060,000
Completed by NKF
The report has been prepared for the client in conjunction with an application for LIHTC, and can
be relied upon by DHCD.
The value above accounts for the current market value of the vacant site. This is to be used for
the development of apartment units, and there will be infrastructure development and costs being
implemented to allow for access/use and ingress/egress. The total cost for infrastructure that
will be implemented by the City and TCB is $661,200 (see details in the addendum). It
is anticipated that this will be in place by June of 2020. At that time it can be assumed that the
value of the development parcel (land and infrastructure) will be:
Market value of the land/site: $1,060,000
Cost of infrastructure/construction: $661,200
Soft Costs of infrastructure: $288,717
Total as of 6/2020*: $2,010,000
*Assuming completion of all infrastructure as anticipated by this date. The costs were issued by the
developer. Hard costs are in the addendum. Soft costs include Design, Bidding, permitting, Contingency
and Admin.
October 31, 2019
Ms. Rachana Crowley
Vacant Land Parcel
Hypothetical Conditions
A hypothetical condition is defined in USPAP as a condition, directly related to a specific
assignment, which is contrary to what is known by the appraiser to exist on the effective date of
the assignment results, but is used for the purpose of analysis. The value conclusions are based
on the following hypothetical conditions that may affect the assignment results.
None
The appraisal was developed based on, and this report has been prepared in conformance with
the Client’s appraisal requirements, the guidelines and recommendations set forth in the Uniform
Standards of Professional Appraisal Practice (USPAP), the requirements of the Code of
Professional Ethics and Standards of Professional Appraisal Practice of the Appraisal Institute,
Title XI of the Financial Institution Reform, Recovery and Enforcement Act (FIRREA) of 1989, and
the Interagency Appraisal and Evaluation Guidelines (December 2, 2010).
Certification
Vacant Land Parcel
Certification
We certify that, to the best of our knowledge and belief:
1.The statements of fact contained in this report are true and correct.
2.The reported analyses, opinions, and conclusions are limited only by the reported
assumptions and limiting conditions and are our personal, impartial and unbiased
professional analyses, opinions, and conclusions.
3.We have no present or prospective interest in the property that is the subject of this report
and no personal interest with respect to the parties involved.
4.We have no bias with respect to the property that is the subject of this report or to the
parties involved with this assignment.
5.Our engagement in this assignment was not contingent upon developing or reporting
predetermined results.
6.Our compensation for completing this assignment is not contingent upon the
development or reporting of a predetermined value or direction in value that favors the
cause of the client, the amount of the value opinion, the attainment of a stipulated result,
or the occurrence of a subsequent event directly related to the intended use of this
appraisal.
7.This appraisal assignment was not based upon a requested minimum valuation, a specific
valuation, or the approval of a loan.
8.Our analysis, opinions, and conclusions were developed, and this report has been
prepared, in conformity with the requirements of the Code of Professional Ethics and
Standards of Professional Appraisal Practice of the Appraisal Institute and conforms with
the Uniform Standards of Professional Appraisal Practice (USPAP).
9.The reported analyses, opinions, and conclusions were developed, and this report has
been prepared, in conformity with the Code of Professional Ethics and Standards of
Professional Appraisal Practice of the Appraisal Institute.
10.The use of this report is subject to the requirements of the Appraisal Institute relating to
review by its duly authorized representatives.
11.As of the date of this report, M. Scott Allen, MAI has completed the continuing education
program for Designated Members of the Appraisal Institute.
12.M. Scott Allen, MAI is a State Certified Appraiser, in the State of Massachusetts.
13.M. Scott Allen toured the site in February of 2019 when prior market study work was
completed on the land/site.
14.No one has provided significant real property appraisal assistance to the person(s)
signing this report.
Certification 4
Vacant Land Parcel
15.The Firm operates as an independent economic entity. Although employees of other
service lines or affiliates of the Firm may be contacted as a part of our routine market
research investigations, absolute client confidentiality and privacy were maintained at all
times with regard to this assignment without conflict of interest.
16.Within this report, "Newmark Knight Frank", “NKF Valuation & Advisory”, “NKF, Inc.”, and
similar forms of reference refer only to the appraiser(s) who have signed this certification
and any persons noted above as having provided significant real property appraisal
assistance to the persons signing this report.
17.The appraisers have not performed any services, as an appraiser or in any other capacity,
regarding the property that is the subject of this report within the three-year period
immediately preceding acceptance of this assignment.
Value Conclusion
Appraisal Premise Interest Appraised Date of Value Value Conclusion
Market Value "As Is" Fee Simple 10/21/2019 $1,060,000
Completed by NKF
The report has been prepared for the client in conjunction with an application for LIHTC, and can
be relied upon by DHCD.
The value above accounts for the current market value of the vacant site. This is to be used for
the development of apartment units, and there will be infrastructure development and costs being
implemented to allow for access/use and ingress/egress. The total cost for infrastructure that
will be implemented by the City and TCB is $661,200 (see details in the addendum). It
is anticipated that this will be in place by June of 2020. At that time it can be assumed that the
value of the development parcel (land and infrastructure) will be:
Market value of the land/site: $1,060,000
Cost of infrastructure/construction: $661,200
Soft Costs of infrastructure: $288,717
Total as of 6/2020*: $2,010,000
The costs were issued by the developer. Hard costs are in the addendum. Soft costs include Design,
Bidding, permitting, Contingency and Admin.
M. Scott Allen, MAI
Executive Vice President
Appraiser
Mass Cert. #103369-RA-CG
Email:scott.allen@ngkf.com
Table of Contents
Vacant Land Parcel
Table of Contents
Appraisal Transmittal and Certification
Certification
Table of Contents
Subject Maps
Subject Photographs
Executive Summary 6
Introduction 7
Neighborhood Analysis 11
Land and Site Analysis 10
Zoning and Legal Restrictions 36
Real Estate Taxes 37
Highest and Best Use 38
Appraisal Methodology 39
Sales Comparison Approach 40
Price per Acre Conclusion 47
Reconciliation of Value 48
Assumptions and Limiting Conditions 50
Addenda
Glossary of Terms
Land Disposition Agreement
Reciprocal Easement
Probable Cost
Engagement Letter
Qualifications
Subject Maps 5
Vacant Land Parcel
Introduction 6
Vacant Land Parcel
Executive Summary
Property Type:Vacant Residential Land
Street Address:Ford Crossing Road
City, State & Zip:Northampton, Hampshire County, MA 01060
MSA Name:Springfield MSA
Market Name:Hampshire
Latitude:42.312029
Longitude:-72.647301
Census Tract:8219.03
Land Area:4.88 Useable Acres, 212,573 SF
Zoning:PD
Assessor's Parcel ID(s):
Highest and Best Use - As Vacant:Multi-Family
Analysis Details
Valuation Date:
Market Value "As Is"October 21, 2019
Inspection Date and Date of Photos:
Report Date:
Report Type:
Client:
Intended Use:
Intended User:
Appraisal Premise:
Intended Use and User:
Interest Appraised:
Exposure Time (Marketing Period) Estimate:
Site Characteristics
Total Land Area (Gross):33.8 Acres
Usable Land Area (Net):4.88 Acres
Shape:Irregular
Topography:Level
Flood Zone:Zone X
Flood Map / Date:2501670002A/April 3, 1978
Zoning PD; A Planned Development District
Legally Conforming Yes
Easements / Encroachments:Pending Access Easements
Environmental Hazards:None Noted
Compiled by NKF
12 Months (12 Months)
The Community Builders
February 18, 2019
None
October 22, 2019
North Commons at Village Hill
13C-017-001
The intended use and user of our report are specifically identified in our
report as agreed upon in our contract for services and/or reliance
language found in the report. No other use or user of the report is
permitted by any other party for any other purpose. Dissemination of this
report by any party to non-client, non-intended users does not extend
reliance to any other party and Newmark Knight Frank will not be
responsible for unauthorized use of the report, its conclusions or
contents used partially or in its entirety.
Appraisal Report
DACD Application
The Community Builders & DACD
Fee Simple
Introduction 7
Vacant Land Parcel
Introduction
Ownership and Sales History
The site is currently owned by Hospital Hill Development. There has been no recorded recent sale
of the land.
The land is under a “Land Disposition Agreement” to transfer from the current owner to The
Community Builders. Some notes include:
- Signed originally in August of 2017.
- The price is $1,900,000 but this includes land that will be part of another development.
The allocated amount to this site is currently $1,880,000
- The agreement shows a total of 26.4 acres for what is defined as parcel A. The
developer has confirmed however that the parcel has now been classified as A/D and
E for a total of 33.8 Acres. Only A which equals 4.88 acres will be developed.
- There are requirements that the parcel be advanced as intended to accommodate a
mixed income/affordable housing development; see the Agreement that will be
provided in the addendum.
Value Conclusions
Appraisal Premise Interest Appraised Date of Value Value Conclusion
Market Value "As Is"Fee Simple 10/21/2019 $1,060,000
Compiled by NKF
Introduction 8
Vacant Land Parcel
Intended Use and User
The intended use and user of our report are specifically identified in our report as agreed upon in
our contract for services and/or reliance language found in the report. No other use or user of the
report is permitted by any other party for any other purpose. Dissemination of this report by any
party to non-client, non-intended users does not extend reliance to any other party and Newmark
Knight Frank will not be responsible for unauthorized use of the report, its conclusions or contents
used partially or in its entirety.
The intended use of the appraisal is to establish market value to be used with the
requirements of the DHCD-LIHTC application.
The Community Builders and Mass DHCD.
Definition of Value
Market value is defined as:
“The most probable price which a property should bring in a competitive and open market under
all conditions requisite to a fair sale, the buyer and seller each acting prudently and
knowledgeably, and assuming the price is not affected by undue stimulus. Implicit in this
definition is the consummation of a sale as of a specified date and the passing of title from seller
to buyer under conditions whereby:
Buyer and seller are typically motivated;
Both parties are well informed or well advised, and acting in what they consider their
own best interests;
A reasonable time is allowed for exposure in the open market;
Payment is made in terms of cash in U.S. dollars or in terms of financial arrangements
comparable thereto; and
The price represents the normal consideration for the property sold unaffected by
special or creative financing or sales concessions granted by anyone associated with
the sale.”
Source: Code of Federal Regulations, Title 12, Chapter I, Part 34.42[g]; also Interagency Appraisal and
Evaluation Guidelines, Federal Register, 75 FR 77449, December 10, 2010, page 77472)
Interest Appraised
The appraisal is of the Fee Simple.
Introduction 9
Vacant Land Parcel
Appraisal Report
This appraisal is presented in the form of an appraisal report, which is intended to comply with
the reporting requirements set forth under Standards Rule 2-2(a) of USPAP. This report
incorporates sufficient information regarding the data, reasoning and analysis that were used to
develop the opinion of value in accordance with the intended use and user.
Purpose of the Appraisal
The purpose of the appraisal is to develop an opinion of the of the Fee Simple interest in the
property.
Scope of Work
Extent to Which the Property is Identified
Physical characteristics
Legal characteristics
Economic characteristics
Extent to Which the Property is Inspected
NKF inspected the subject property on February 18, 2019 as per the defined scope of work. Scott
Allen made a personal inspection of the property that is the subject of this report.
Type and Extent of the Data Researched
Exposure and marking time;
Neighborhood and land use trends;
Demographic trends;
Market trends relative to the
subject property type;
Physical characteristics of the site
and applicable improvements;
Flood zone status;
Zoning requirements and
compliance;
Real estate tax data;
Relevant applicable comparable
data; and
Investment rates
Type and Extent of Analysis Applied
We analyzed the property and market data gathered through the use of appropriate, relevant, and
accepted market-derived methods and procedures. Further, we employed the appropriate and
relevant approaches to value, and correlated and reconciled the results into an estimate of market
value, as demonstrated within the appraisal report.
Area Analysis 10
North Commons at Village Hill
Northampton, MA
Neighborhood Analysis
The Village Hill development is a mixed-use residential and commercial planned development located to the
south of the downtown core of the City of Northampton and Smith College. Specifically, the Village Hill District
is located off the north side of Chapel Street/West Street near its intersection with Prince. It is the
redevelopment of the former mental hospital which is integrating some of the existing historical buildings
together with new construction to accommodate different development components. We will present a
summarization of some of the development options within the Village Hill District later within this analysis.
The area is about ¾ of a mile to a mile south/west of the main downtown area of Northampton, which is
generally identified as the intersection of Main Street and Pleasant Street. The site is also less than a mile
from Smith College which is just to the east, and near numerous recreational areas (predominately located
along Mill River).
In regards to the neighborhood boundaries, they are broadly defined as:
• Prospect Street to the north
• Old Springfield Road to the south
• Florence Road to the west
• Pleasant Street to the east.
Surrounding property uses around the sites that are part of the development are other phases of the Village
Hill Redevelopment Project. Broadly, some of the surrounding property uses that are general to the area
include:
Area Analysis 11
North Commons at Village Hill
Northampton, MA
Economic Analysis
Area Analysis
The subject property is located in Hampshire County which is part of the Springfield Metropolitan Statistical
Area (MSA), Along with Hampden County. The Knowledge Corridor surrounding Springfield-Hartford is New
England’s second most populous urban area with 1.9 million people. To the west of Hampshire County is
Berkshire County and to the east is Worcester County.
Hampshire County is the middle section of the Pioneer Valley, and the northern tip of the Hartford-Springfield
Knowledge Corridor. Western New England's largest city, and Western Massachusetts' economic, civic, and
recreational capital is Springfield. Springfield lies on the Connecticut River.
Area Analysis 12
North Commons at Village Hill
Northampton, MA
Population:
The population of the Springfield MSA shows a consistent growth rate of approximately one to two percent
from 1990 to 2017. Hampshire County has historically grown at a larger rate than the MSA as a whole,
growing t almost four percent in 2000 and 2010. The most recent population estimates indicate that this
growth has slowed, with a population change of just 1.97% from 2010-2017.
% Change % Change % Change
1990-2000 2000-2010 2010-2017
Massachusetts 6,016,425 6,349,097 5.53%6,547,629 3.13%6,789,319 3.69%
% Change % Change % Change
1990-2000 2000-2010 2010-2017
Springfield MSA 602,880 608,478 0.93%621,570 2.15%630,385 1.42%
% Change % Change % Change
1990-2000 2000-2010 2010-2017
Hampden County 456,341 456,263 -0.02%463,490 1.58%469,188 1.23%
Hampshire County 146,540 152,215 3.87%158,080 3.85%161,197 1.97%
% Change % Change % Change
1990-2000 2000-2010 2010-2017
Amherst town 35,244 34,884 -1.02%37,819 8.41%39,880 5.45%
Northampton city 29,290 28,979 -1.06%28,549 -1.48%28,548 0.00%
South Hadley town 16,676 17,179 3.02%17,514 1.95%17,737 1.27%
Easthampton Town city 15,541 15,998 2.94%16,053 0.34%16,051 -0.01%
Belchertown town 10,574 12,960 22.56%14,649 13.03%14,906 1.75%
*2013-2017 ACS 5-Year Estimates
2017*
2017*
2017*
2017*
2010
2010Cities
1990 2000 2010
1990 2000 2010MSA
County 1990 2000
1990 2000
Population Trends
Region
Area Analysis 13
North Commons at Village Hill
Northampton, MA
UMDI Region COUNTY MCD Name Census 2010 Projection 2015 Projection 2020 Projection 2025 Projection 2030 Projection 2035
Lower Pioneer Valley Hampden AGAWAM 28,438 28,741 28,956 29,172 29,259 29,151
Lower Pioneer Valley Hampshire AMHERST 37,819 36,701 35,769 35,203 34,783 34,675
Lower Pioneer Valley Hampshire BELCHERTOWN 14,649 15,576 16,514 17,393 18,133 18,713
Lower Pioneer Valley Hampden CHICOPEE 55,298 56,514 57,815 59,157 60,333 61,325
Lower Pioneer Valley Hampden EAST 15,720 16,627 17,544 18,504 19,609 20,794
Lower Pioneer Valley Hampshire EASTHAMPTON 16,053 16,304 16,481 16,574 16,509 16,269
Lower Pioneer Valley Hampshire GRANBY 6,240 6,279 6,323 6,346 6,325 6,252
Lower Pioneer Valley Hampshire HADLEY 5,250 5,553 5,850 6,131 6,381 6,595
Lower Pioneer Valley Hampden HAMPDEN 5,139 5,069 4,951 4,776 4,550 4,281
Lower Pioneer Valley Hampshire HATFIELD 3,279 3,286 3,284 3,267 3,226 3,149
Lower Pioneer Valley Hampden HOLYOKE 39,880 40,588 41,228 41,952 42,660 43,211
Lower Pioneer Valley Hampshire HUNTINGTON 2,180 2,173 2,160 2,140 2,087 2,000
Lower Pioneer Valley Hampden LONGMEADOW 15,784 15,554 15,383 15,272 15,363 15,661
Lower Pioneer Valley Hampden LUDLOW 21,103 21,026 20,931 20,770 20,495 20,095
Lower Pioneer Valley Hampden MONSON 8,560 8,677 8,804 8,897 8,912 8,839
Lower Pioneer Valley Hampden MONTGOMERY 838 937 1,035 1,131 1,217 1,292
Lower Pioneer Valley Hampshire NORTHAMPTON 28,549 28,548 28,702 28,768 28,481 27,784
Lower Pioneer Valley Hampden PALMER 12,140 12,198 12,245 12,246 12,136 11,936
Lower Pioneer Valley Hampden RUSSELL 1,775 1,810 1,852 1,896 1,951 1,998
Lower Pioneer Valley Hampshire SOUTH HADLEY 17,514 17,673 17,967 18,169 18,273 18,363
Lower Pioneer Valley Hampshire SOUTHAMPTON 5,792 6,024 6,229 6,401 6,493 6,512
Lower Pioneer Valley Hampden SOUTHWICK 9,502 9,789 10,056 10,262 10,377 10,397
Lower Pioneer Valley Hampden SPRINGFIELD 153,060 155,922 159,235 162,900 166,650 169,791
Lower Pioneer Valley Franklin SUNDERLAND 3,684 3,543 3,408 3,265 3,124 2,973
Lower Pioneer Valley Hampshire WARE 9,872 9,967 10,064 10,129 10,067 9,919
Lower Pioneer Valley Hampden WEST SPRINGFIELD 28,391 28,992 29,581 30,160 30,649 31,045
Lower Pioneer Valley Hampden WESTFIELD 41,094 41,599 42,251 42,896 43,255 43,260
Lower Pioneer Valley Hampden WILBRAHAM 14,219 14,519 14,858 15,257 15,776 16,348
Lower Pioneer Valley Hampshire WILLIAMSBURG 2,482 2,491 2,488 2,471 2,432 2,352
Umass Donahue Institute Population Projections - March 2015 - MCD
Area Analysis 14
North Commons at Village Hill
Northampton, MA
COUNTY Census 2010 Projection 2015 Projection 2020 Projection 2025 Projection 2030 Projection 2035
Barnstable 215,888 215,073 205,411 198,550 192,894 187,674
Berkshire 131,219 129,450 129,692 129,992 130,446 130,389
Bristol 548,285 557,690 563,618 568,691 572,196 573,960
Dukes 16,535 17,291 17,305 17,604 17,972 18,453
Essex 743,159 783,531 798,824 813,666 824,650 831,063
Franklin 71,372 70,498 70,703 70,832 70,586 69,882
Hampden 463,490 471,163 479,431 487,931 495,749 501,718
Hampshire 158,080 158,855 160,077 161,158 161,277 160,451
Middlesex 1,503,085 1,577,277 1,611,789 1,645,167 1,673,074 1,694,670
Nantucket 10,172 10,667 10,678 10,895 11,371 12,004
Norfolk 670,850 705,106 729,296 752,774 771,889 786,274
Plymouth 494,919 508,861 519,998 530,225 538,676 544,388
Suffolk 722,023 764,433 809,433 853,702 888,796 914,644
Worcester 798,552 822,696 844,413 864,691 881,550 893,899
Umass Donahue Institute Population Projections - MCD
UMDI Region Census 2010 Projection 2015 Projection 2020 Projection 2025 Projection 2030 Projection 2035
Berkshire and Franklin 236,058 233,933 235,525 237,166 238,415 238,596
Cape and Islands 242,595 243,031 233,394 227,049 222,237 218,131
Central 693,813 709,911 726,844 741,499 753,049 760,508
Greater Boston 1,975,155 2,085,049 2,188,899 2,285,777 2,361,771 2,418,750
Lower Pioneer Valley 604,304 612,680 621,964 631,505 639,506 644,980
MetroWest 655,126 691,033 699,529 711,926 724,514 734,887
Northeast 1,031,733 1,084,149 1,094,180 1,104,909 1,113,547 1,118,267
Southeast 1,108,845 1,132,805 1,150,333 1,166,047 1,178,087 1,185,350
Umass Donahue Institute Population Projections - MCD
Area Analysis 15
North Commons at Village Hill
Northampton, MA
Employment Data
The charts below outline the labor force and employment data for the County of Hampshire. Historically,
unemployment peaked at 7.0% in 2010 likely due to the recessionary climate; the rate has since been
decreasing annually with the most recent annual data of 3.4% in 2017 being a decrease from the rate
of 3.6% in 2016. Year to date the rate has decreased from 2.6% in December 2017 to 2.4% in December
2018. In terms of employed people, there has been a steady increase annually since the low of 79,500
in 2010. As of December 2018, there were 90,400 Employed.
Year Jan Feb Mar Apr May Jun Jul Aug Sep Oct Nov Dec Ann Avg
2018 3.4%3.5%3.4%2.9%3.0%3.9%3.9%3.3%2.9%2.5%2.2%2.4%3.1%
2017 4.1%3.9%3.9%3.3%3.4%4.0%4.1%3.5%3.1%2.7%2.6%2.6%3.4%
2016 4.4%4.1%3.9%3.4%3.6%4.2%4.1%3.6%3.3%3.0%2.9%3.0%3.6%
2015 5.4%4.8%4.7%4.3%4.5%5.1%5.1%4.4%4.3%3.8%3.9%3.8%4.5%
2014 6.2%5.8%5.6%5.0%5.2%5.9%5.8%5.1%5.1%4.6%4.6%4.4%5.3%
2013 6.8%6.2%5.9%5.8%6.2%7.1%6.7%6.1%5.9%5.5%5.3%5.3%6.1%
2012 6.4%6.0%5.4%5.2%5.3%6.5%6.6%5.9%5.8%5.5%5.5%5.7%5.8%
2011 7.2%6.5%6.1%6.0%5.9%7.0%6.9%6.1%6.0%5.5%5.4%5.5%6.2%
2010 8.0%7.3%7.0%6.5%6.7%7.8%7.8%7.0%7.0%6.2%6.5%6.6%7.0%
2009 6.2%6.1%5.7%5.3%5.9%7.1%7.4%6.8%7.1%6.5%6.7%6.7%6.4%
2008 4.6%4.1%4.0%3.6%4.2%5.1%5.2%4.7%4.7%4.4%4.9%5.1%4.5%
2007 4.7%4.3%3.9%3.6%3.7%4.5%4.4%3.6%3.7%3.3%3.3%3.5%3.9%
Unemployment Rate - Hampshire County
Year Jan Feb Mar Apr May Jun Jul Aug Sep Oct Nov Dec
Ann
Avg
2018 85.0 86.9 87.7 88.5 88.7 88.9 88.6 88.7 89.0 89.8 90.3 90.4 88.5
2017 84.0 85.2 85.7 86.0 85.4 85.6 85.1 85.1 85.2 85.9 86.5 86.1 85.5
2016 83.2 84.3 84.8 85.0 84.4 84.6 84.4 84.6 84.5 85.4 85.8 85.5 84.7
2015 82.6 83.7 83.7 84.0 83.6 83.8 82.8 82.9 82.3 83.6 83.8 83.7 83.4
2014 80.3 81.2 81.9 82.6 82.2 82.4 82.2 82.6 82.0 83.6 83.7 83.7 82.4
2013 78.9 79.7 80.1 80.7 80.3 80.2 79.7 79.8 80.2 80.5 80.9 81.1 80.2
2012 78.6 79.5 80.4 81.0 80.9 81.1 79.6 79.7 80.1 81.1 80.8 80.4 80.3
2011 78.5 79.2 79.7 79.9 79.8 80.1 79.1 79.4 79.6 80.4 80.1 80.0 79.7
2010 77.6 78.4 79.0 79.9 79.8 79.9 79.5 79.5 79.3 80.3 80.3 80.0 79.5
2009 80.4 83.2 83.4 83.9 83.4 80.3 79.4 79.1 80.8 82.8 83.0 81.8 81.8
2008 82.2 85.2 85.9 86.4 85.9 82.8 81.8 81.5 83.9 86.2 85.9 85.0 84.4
2007 82.7 85.6 86.2 86.1 86.2 83.4 82.3 82.0 84.4 86.5 87.0 86.1 84.9
Data in Thousands Source: BLS.gov (Updated 10/21/2019)
Employment - Hampshire County
Area Analysis 16
North Commons at Village Hill
Northampton, MA
Outlined below and on the following page are wages broken down by industry for the County of
Hampshire for the 2nd quarter of 2018 (most current available).
Apr-18 May-18 Jun-18
Total, All Industries 4,609 49,030 49,459 49,384 $541,342,430 49,291 $845
Goods-Producing 570 4,730 4,897 5,102 $68,236,137 4,910 $1,069
Natural Resources and Mining 44 412 435 498 $3,210,575 448 $551
11 - Agriculture, Forestry, Fishing and Hunting 37 373 397 459 $2,745,584 410 $515
21 - Mining, Quarrying, and Oil and Gas Extraction 7 39 38 39 $464,992 39 $917
Construction 405 1,993 2,118 2,214 $28,820,166 2,108 $1,052
23 - Construction 405 1,993 2,118 2,214 $28,820,166 2,108 $1,052
Manufacturing 121 2,325 2,344 2,390 $36,205,396 2,353 $1,184
31-33 - Manufacturing 121 2,325 2,344 2,390 $36,205,396 2,353 $1,184
DUR - Durable Goods Manufacturing 73 1,342 1,348 1,378 $22,588,728 1,356 $1,281
NONDUR - Non-Durable Goods Manufacturing 48 983 996 1,012 $13,616,668 997 $1,051
Service-Providing 4,039 44,300 44,562 44,282 $473,106,293 44,381 $820
Trade, Transportation and Utilities 701 10,880 10,956 10,970 $125,805,053 10,935 $885
22 - Utilities 6 103 103 103 $2,952,077 103 $2,205
42 - Wholesale Trade 142 2,648 2,654 2,714 $61,496,593 2,672 $1,770
44-45 - Retail Trade 490 7,316 7,363 7,339 $54,213,127 7,339 $568
48-49 - Transportation and Warehousing 63 813 836 814 $7,143,257 821 $669
Information 88 713 752 713 $9,728,964 726 $1,031
51 - Information 88 713 752 713 $9,728,964 726 $1,031
Financial Activities 258 1,842 1,858 1,872 $24,720,374 1,857 $1,024
52 - Finance and Insurance 149 1,348 1,347 1,343 $20,013,596 1,346 $1,144
53 - Real Estate and Rental and Leasing 109 494 511 529 $4,706,778 511 $709
Professional and Business Services 706 4,478 4,478 4,578 $53,568,352 4,511 $913
54 - Professional and Technical Services 463 1,938 1,871 1,903 $30,381,437 1,904 $1,227
55 - Management of Companies and Enterprises 22 557 561 562 $6,712,415 560 $922
56 - Administrative and Waste Services 221 1,983 2,046 2,113 $16,474,500 2,047 $619
Education and Health Services 1,418 17,010 16,947 16,643 $204,853,304 16,867 $934
61 - Educational Services 139 6,679 6,620 6,351 $96,496,127 6,550 $1,133
62 - Health Care and Social Assistance 1,279 10,331 10,327 10,292 $108,357,177 10,317 $808
Leisure and Hospitality 476 7,294 7,472 7,330 $36,714,603 7,365 $383
71 - Arts, Entertainment, and Recreation 97 997 1,030 1,008 $4,880,552 1,012 $371
72 - Accommodation and Food Services 379 6,297 6,442 6,322 $31,834,051 6,354 $385
Other Services 392 2,083 2,099 2,176 $17,715,642 2,119 $643
81 - Other Services, Except Public Administration 392 2,083 2,099 2,176 $17,715,642 2,119 $643
Source Mass.gov (Updated 10/2019)
Description Number of Employees Total Wages Avg Monthly
Employment
Avg Weekly
Wages
No. of
Establishments
Area Analysis 17
North Commons at Village Hill
Northampton, MA
Employment Forecasts – Hampshire County
In regards to employment forecasts for the county WDA, we are able to provide some documentation
from the Massachusetts Labor and Workforce Development website broken down by various trade
groups.
Industry Employment
2016
Employment
2026 Change %
Change
Total All Industries 101,115 106,813 5,698 5.60%
Crop Production 814 898 84 10.30%
Animal Production 131 152 21 16.00%
Utilities 235 241 6 2.60%
Construction 2,962 3,250 288 9.70%
Construction of Buildings 781 868 87 11.10%
Heavy and Civil Engineering Construction 122 131 9 7.40%
Specialty Trade Contractors 2,059 2,251 192 9.30%
Manufacturing 6,866 6,107 -759 -11.10%
Food Manufacturing 401 426 25 6.20%
Beverage and Tobacco Product Manufacturing 105 115 10 9.50%
Paper Manufacturing 697 489 -208 -29.80%
Plastics and Rubber Products Manufacturing 1,281 1,208 -73 -5.70%
Fabricated Metal Product Manufacturing 1,492 1,412 -80 -5.40%
Machinery Manufacturing 440 214 -226 -51.40%
Computer and Electronic Product Manufacturing 425 366 -59 -13.90%
Furniture and Related Product Manufacturing 156 125 -31 -19.90%
Miscellaneous Manufacturing 727 670 -57 -7.80%
Wholesale Trade 2,767 2,860 93 3.40%
Merchant Wholesalers, Durable Goods 940 921 -19 -2.00%
Merchant Wholesalers, Nondurable Goods 1,511 1,509 -2 -0.10%
Wholesale Electronic Markets and Agents and Brokers 316 430 114 36.10%
Retail Trade 11,088 11,270 182 1.60%
Motor Vehicle and Parts Dealers 1,240 1,269 29 2.30%
Furniture and Home Furnishings Stores 145 144 -1 -0.70%
Building Material and Garden Equipment and Supplies Dealers 1,084 1,100 16 1.50%
Food and Beverage Stores 3,718 3,793 75 2.00%
Health and Personal Care Stores 592 595 3 0.50%
Gasoline Stations 543 559 16 2.90%
Sporting Goods, Hobby, Book, and Music Stores 505 447 -58 -11.50%
General Merchandise Stores 1,539 1,565 26 1.70%
Miscellaneous Store Retailers 771 769 -2 -0.30%
Nonstore Retailers 403 441 38 9.40%
Transportation and Warehousing 1,974 2,026 52 2.60%
Source: Mass.gov (10/2019)
Industry Projections for Franklin/Hampshire WDA
Area Analysis 18
North Commons at Village Hill
Northampton, MA
Industry Employment
2016
Employment
2026 Change %
Change
Rail Transportation 205 209 4 2.00%
Truck Transportation 340 340 0 0.00%
Transit and Ground Passenger Transportation 815 850 35 4.30%
Support Activities for Transportation 129 122 -7 -5.40%
Couriers and Messengers 143 157 14 9.80%
Information 1,117 1,026 -91 -8.10%
Publishing Industries (except Internet)518 480 -38 -7.30%
Motion Picture and Sound Recording Industries 126 120 -6 -4.80%
Telecommunications 278 217 -61 -21.90%
Other Information Services 102 108 6 5.90%
Finance and Insurance 1,857 1,696 -161 -8.70%
Credit Intermediation and Related Activities 1,268 1,177 -91 -7.20%
Securities, Commodity Contracts, and Other Financial Investm 139 146 7 5.00%
Insurance Carriers and Related Activities 450 373 -77 -17.10%
Real Estate and Rental and Leasing 837 832 -5 -0.60%
Real Estate 750 744 -6 -0.80%
Professional, Scientific, and Technical Services 2,510 2,927 417 16.60%
Professional, Scientific, and Technical Services 2,510 2,927 417 16.60%
Management of Companies and Enterprises 1,131 1,197 66 5.80%
Management of Companies and Enterprises 1,131 1,197 66 5.80%
Administrative and Support and Waste Management and Remediat 2,376 2,208 -168 -7.10%
Administrative and Support Services 2,155 1,959 -196 -9.10%
Waste Management and Remediation Service 221 249 28 12.70%
Educational Services 22,630 25,230 2,600 11.50%
Educational Services 22,630 25,230 2,600 11.50%
Health Care and Social Assistance 14,970 16,841 1,871 12.50%
Ambulatory Health Care Services 4,653 5,394 741 15.90%
Hospitals 2,516 2,584 68 2.70%
Nursing and Residential Care Facilities 3,585 4,133 548 15.30%
Social Assistance 4,216 4,730 514 12.20%
Arts, Entertainment, and Recreation 1,741 1,795 54 3.10%
Amusement, Gambling, and Recreation Industries 879 887 8 0.90%
Accommodation and Food Services 8,594 9,097 503 5.90%
Accommodation, including Hotels and Motels 637 684 47 7.40%
Food Services and Drinking Places 7,957 8,413 456 5.70%
Other Services (except Government)2,972 3,071 99 3.30%
Repair and Maintenance 696 729 33 4.70%
Personal and Laundry Services 798 839 41 5.10%
Religious, Grantmaking, Civic, Professional, and Similar Org 1,313 1,334 21 1.60%
Private Households 165 169 4 2.40%
Source: Mass.gov (10/2019)
Industry Projections for Franklin/Hampshire WDA
Area Analysis 19
North Commons at Village Hill
Northampton, MA
Major Employers
Below are the major employers in the Franklin/Hampshire WDA. The top four employers based on
number of employees are in retail and education, another main industry consistent in the major
employers is health care.
Company Name City Number of
Employees
C & S Wholesale Grocers Inc Hatfield 1,000-4,999
Massachusetts University-Amh Amherst 1,000-4,999
Mt Holyoke College South Hadley 1,000-4,999
Smith College Northampton 1,000-4,999
Yankee Candle Co Inc South Deerfield 1,000-4,999
Amherst College Amherst 500-999
Cooley Dickinson Hospital Northampton 500-999
Delivery Express Amherst 500-999
LS Starrett Co Athol 500-999
Mt Holyoke College South Hadley 500-999
Pelican Products Inc South Deerfield 500-999
Seaman Warehouse Orange 500-999
US Veterans Medical Ctr Leeds 500-999
Yankee Candle Co South Deerfield 500-999
Athol Memorial Hospital Athol 250-499
Athol-Royalston School Dist Athol 250-499
Baystate Franklin Medical Ctr Greenfield 250-499
Berry Plastics Easthampton 250-499
C & S Wholesale Grocers Inc Hatfield 250-499
Cooley Dickinson Hosp Easthampton 250-499
COVERIS Advanced Coatings South Hadley 250-499
Deerfield Academy Deerfield 250-499
Farren Care Ctr Inc Turners Falls 250-499
Hampshire College Amherst 250-499
Mullins Center Amherst 250-499
Northfield Mt Hermon Mt Hermon 250-499
State Police Northampton 250-499
Source: Mass.gov (10/2019)
Largest Employers Franklin/Hampshire WDA 2018
Area Analysis 20
North Commons at Village Hill
Northampton, MA
Residential Sales
In regards to median sale price, the Springfield MSA falls at $223,600 which has gone up 4.6% over the
past year according to Zillow.
Area Analysis 21
North Commons at Village Hill
Northampton, MA
Area Analysis 22
North Commons at Village Hill
Northampton, MA
Building Permits
Below we provide the historical permits issued since 2008. The highest number issued during that time
frame was in 2018 with 368 issued. Annually, there was an increase in permits issued from 289 in 2017
to 368 in 2018.
County Totals
2008 2009 2010 2011 2012 2013 2014 2015 2016 2017 2018 2019*
Total Units 224 194 248 144 179 197 193 188 257 289 368 7
Units in Single-Family Structures 184 177 232 121 144 163 164 169 240 215 222 7
Units in All Multi-Family Structures 40 17 16 23 35 34 29 19 17 74 146 0
Units in 2-unit Multi-Family Structures 0 6 0 2 8 14 8 0 0 0 12 0
Units in 3- and 4-unit Multi-Family Structures 3 11 4 3 0 4 0 4 4 0 0 0
Units in 5+ Unit Multi-Family Structures 37 0 12 18 27 16 21 15 13 74 134 0
Source: Huduser.org *2019 Preliminary Data Through July,Updated 10/21/2019
Housing Unit Building Permits for:
Hampshire County
SOCDS Building Permits Database
Area Analysis 23
North Commons at Village Hill
Northampton, MA
HUD PD&R Report
Below is the market at a glance for Hampshire County which includes data from the American
Community Fact Finder and US Census Bureau.
Neighborhood Analysis 24
North Commons at Village Hill
Northampton, MA
Neighborhood Analysis 25
North Commons at Village Hill
Northampton, MA
Village Hill Complex
As indicated, the subject sites are part of the Village Hill Redevelopment Project. There are
multiple components associated with this development and a summarization is outlined below.
Many are residential in orientation. The community takes up 126 acres and appears to be around
70% built out. Subsequent to the presentation of the neighborhood data, we will present a map
outlining master plan for this community. Some of the components of this development that are
important to recognize include the following:
Single-Family Units:
Scattered throughout the project and located within multiple sections. There are a number of
housing options within the Village Hill Development. Many of these are built out to full capacity
and involve mostly three and four-bedroom structures. Pricing ranges from the upper $460,000
to over $650,000 for some of the larger homes and more recently-built dwellings. A
summarization of general housing patterns in the area is outlined in the first chart. Then there is
some documentation related to single-family homes from within the Village Hill Development,
specifically. This becomes important in order to ascertain not only market support for these units,
but pricing for nearby homes.
Apartments:
The apartments include Hilltop and Hillside, both operated by the Community Builders. We refer
the reader to the Supply section for additional details of these existing developments which are
operationally successful.
Assisted Living:
Christopher Heights at Northampton is the assisted living development located on site. This
project targets seniors who have advanced needs regarding level of care. There are 83 assisted
living units; 43 of which are designed for low-income seniors.
Neighborhood Analysis 26
North Commons at Village Hill
Northampton, MA
Commercial & Business Components:
A commercial development will be built out in some of the later phases. The L3-KEO Corporation
and VCA, Inc. are part of the master plan even though they are on the opposite side of the road
from the development activity.
A map demonstrating the layout for the Village Hill master plan follows this discussion. Note that
the proposed subject developments are part of Lot 20, which is outlined in green, and the north
part of the site in an area identified as Summit Oaks Homes on the master plan map.
Lot 13A Development
The subject property is part of what they have identified as Lot 13A within the complex. Adjacent
to/near the subject parcel will be future development to include:
• A proposed Co-housing parcel immediately adjacent that will total 6.2 acres.
• Proposed land for future development by Mass Dev along Ford Crossing Road; 1 acre
• Conservation land located both to the north and east of the Community Builder’s
development site. To the north, there will be a total of 18.5 acres of undeveloped land and
to the east, 10.42 acres of undeveloped land.
In the addendum of the report, there will be a document provided that indicates a breakdown of
the different space uses at the former Village at Hospital Hill/Northampton State Hospital
redevelopment project.
Commercial Development
In regards to commercial necessities, residents of the subject area travel to the downtown core
of Northampton for many of their commercial needs. The downtown area however, provides more
boutique-type retail and commercial opportunities, including local restaurants and pubs, retail
operations, banks, and general stores. Large-scale retail is outside of the downtown core to the
north off of King Street and closer to the Cooley Dickinson Hospital.
In regards to transportation linkages, the following should be recognized:
• The highway network system in the area is a few miles from the site; I-91 has a means of
ingress and egress off of Route 5 at Exit 18. This highway subsequently connects with
other parts of Massachusetts, and eventually access into Metro Boston.
• Bus Service: The local transit system does not provide bus service to the subject site
specifically, but there is regional service available. There is a PVTA bus stop 1 mile from
the site.
Neighborhood Analysis 27
North Commons at Village Hill
Northampton, MA
• Rail Access: Commuter rail service and local rail transit is not available. There is Amtrak
rail service in downtown Northampton and the station provides a connection to Metro
Boston.
Recreational and Community Services:
Many recreational options are available nearby. This includes walking, biking and hiking trails
along the Mill River, recreational amenities available at Smith College, nearby parks, and nearby
schools.
Schools:
A summarization of the schools that apply to the development and their rankings are outlined
below:
The property is located in part of the Northampton School District. The schools that are within
closest proximity include:
Elementary School: Bridge Street School, 2 Parsons St., Northampton
Northampton – Public Grades K-5
Middle School: JFK Middle School, 100 Bridge Rd, Florence
Northampton – Public Grades 6-8
High School: Northampton High School, 380 Elm St,
Northampton – Public Grades 9-12
The Northampton City School District ranks 253rd out of 332 districts in Massachusetts
according to SchoolDigger.com.
Area Colleges:
Area colleges have a significant economic impact and influence on the region/neighborhood.
Smith College is clearly the closest in proximity but there are others in the region that are
important to recognize:
• Smith College is located to the south in the heart of downtown Northampton.
Smith College is a small, private women’s school founded in 1871. The enrollment
includes 2,500 undergraduates in Northampton and 150 studying elsewhere. They
do admit both men and women as graduate students, but they remain committed
to the education of women at the graduate level.
• University of Massachusetts at Amherst is located just to the east of the subject
area; located on the opposite side of the Connecticut River, past Hadley.
• As indicated, the area is significantly impacted by the affiliation/association of the
“five colleges”, which includes nearby Smith College in Northampton, University of
Massachusetts, Amherst College, Mt. Holyoke College and Hampshire College.
Neighborhood Analysis 28
North Commons at Village Hill
Northampton, MA
Together, these colleges create the economic driving force for this portion of
Western Massachusetts.
Hospital and Medical Facilities:
The Cooley Dickinson Hospital is to the north of the subject area and serves as the largest acute
care hospital, and hospital system. It is also one of the area's largest employers.
Proximity to Work Places
The subject property is within close proximity to many of the places of work within Northampton.
Many of these are in or near the downtown area including Smith College and the Cooley
Dickenson Hospital. There is another hospital facility located to the north; the Northampton VA &
Medical Center which is a large employer and also many of the residents commute to Amherst
where the University of Massachusetts is located; less than 10 miles from the subject site.
Economic Development Activity
There is not a significant amount of general economic development activity evident in the area.
It is a small community and economic activity is generally related to retail development, physical
updates to existing residential and multi-family projects, and expansion/rehabilitation of some of
the area’s largest community services like the hospitals and colleges.
A general summarization of trade services/community services and their proximity to the project
are summarized in the chart on the following page:
Neighborhood Analysis 29
North Commons at Village Hill
Northampton, MA
Neighborhood Analysis 30
North Commons at Village Hill
Northampton, MA
Neighborhood Photographs 31
North Commons at Village Hill
Northampton, MA
Chapel Street/West Street facing East
Village Hill Infrastructure Ford Crossing West
Hill Top Apartments
Chapel Street/West Street facing West
Village Hill Infrastructure Olander Drive South
Typical Townhomes
Neighborhood Photographs 32
North Commons at Village Hill
Northampton, MA
Typical Single-Family Home
Assisted Living Complex
Commercial Development Nearby
Typical Single-Family Home
Smith College
Downtown Northampton
Land Analysis 33
North Commons at Village Hill
Northampton, MA
Property Type:Vacant Residential Land
Street Address:Ford Crossing Road
City, State & Zip:Northampton, Hampshire County, MA 01060
MSA Name:Springfield MSA
Market Name:Hampshire
Latitude:42.312029
Longitude:-72.647301
Census Tract:8219.03
Land Area:4.88 Useable Acres, 212,573 SF
Zoning:PD
Assessor's Parcel ID(s):
Highest and Best Use - As Vacant:Multi-Family
Analysis Details
Valuation Date:
Market Value "As Is"October 21, 2019
Inspection Date and Date of Photos:
Report Date:
Report Type:
Client:
Intended Use:
Intended User:
Appraisal Premise:
Intended Use and User:
Interest Appraised:
Exposure Time (Marketing Period) Estimate:
Site Characteristics
Total Land Area (Gross):33.8 Acres
Usable Land Area (Net):4.88 Acres
Shape:Irregular
Topography:Level
Flood Zone:Zone X
Flood Map / Date:2501670002A/April 3, 1978
Zoning PD; A Planned Development District
Legally Conforming Yes
Easements / Encroachments:Pending Access Easements
Environmental Hazards:None Noted
Compiled by NKF
12 Months (12 Months)
The Community Builders
February 18, 2019
None
October 22, 2019
North Commons at Village Hill
13C-017-001
The intended use and user of our report are specifically identified in our
report as agreed upon in our contract for services and/or reliance
language found in the report. No other use or user of the report is
permitted by any other party for any other purpose. Dissemination of this
report by any party to non-client, non-intended users does not extend
reliance to any other party and Newmark Knight Frank will not be
responsible for unauthorized use of the report, its conclusions or
contents used partially or in its entirety.
Appraisal Report
DACD Application
The Community Builders & DACD
Fee Simple
Land Analysis 34
North Commons at Village Hill
Northampton, MA
Excess or Surplus Land
There is land that is considered to be excess, but the value contribution is limited. What shows
as parcel D and E will be provided by the developer as conservation land – it has use limitations
now and once this restriction is set, the land cannot be sold/used for development.
Easements, Encroachments and Restrictions
There will be an access easement to an adjacent parcel provided through the main access to the
site. This will be a shared road for ingress and egress; see the agreement in the addendum. There
will be no income generated from the eastment nor any cost to the owner. It is necessary to allow
access to the development of housing on Parcel B. The costs to complete this part of the road
will be shared. No other easement, encroachment or restrictions are noted. Our valuation
assumes no adverse impacts from easements, encroachments, or restrictions, and further
assumes that the subject has clear and marketable title.
Environmental Issues
No environmental issues were observed or reported.
Conclusion
The developable land is 4.88 Acres and the plans will allow for 53 units to be built.
Adequate Access off of the road to be built, extending north off of Ford Crossing.
Zoning and infrastructure will allow for the site development to advance as intended.
Land Analysis 35
North Commons at Village Hill
Northampton, MA
Zoning and Legal Restrictions 36
Vacant Land Parcel
Zoning and Legal Restrictions
The subject is zoned PV; the part of Parcel A that will be developed. This is a Planned development
district and the project is approved with conditions. The section of the Bylaw that applies is 350-
20: Smart Growth Overlay District.
The developer is proposing affordable apartments on the site, and the intended development of
the 53 units is allowable. Additional building on the other parts of the site are not probable.
The land disposition agreement indicates that there was site plan approval was issued as the
concepts for the entire planned development were advance, as early as 2002.
Real Estate Taxes 37
Vacant Land Parcel
Real Estate Taxes
The parcel is identified as Map 31C Block 017, Lot 001. The assessment for the land which now
totals 29.4 acres from the assessment records (the A/D and E parcels for the project are slightly
larger) is $294,000 at 100% full value.
The Tax rate is a total of $17.37/Thousand of assessed value indicating that the total taxes are
$5,107.
Tax Map
Highest and Best Use 38
Vacant Land Parcel
Highest and Best Use
As Vacant
Legally Permissible
The site is zoned PV and allows for multi-family developed as intended. Based on available data
and analysis, no other legal restrictions such as easements or deed covenants are present which
would impair the utility of the site.
The developer is proposing affordable housing with 53 apartments.
Physically Possible
The subject site contains 4.88 useable acres, and would offer good frontage, depth and utility to
accommodate multi-family development. All utilities are available. The land to the rear or north
(parcel B) and East (parcel E) is considered non developable land based on situation and other
physical aspects.
Financially Feasible
Of the legally permissible and physically possible uses, multi-family and community services uses
appear most probable based on observation of surrounding properties as well as the location.
These uses are more fully analyzed for their financial feasibility. Zoning is already in place to allow
the development to advance as anticipated.
Feasibility for any type of type of development is related to the achievable rent or owner-user that
would be in place.
Maximally Productive
The test of maximum productivity is to determine the actual use of the property that results in the
highest land value and/or the highest return to the land. It is important to consider the risk of
potential uses as a use that may generate the highest returns in cash could also be the riskiest
and thus not as likely for a developer to consider. In this case, the maximally productive use is a
multi-family development. The associated risk is typical and market conditions appear to be
supportive.
Highest and Best Use Conclusion – As Vacant
The highest and best use of the subject as though vacant is for the development of a multi-family
housing development.
Appraisal Methodology 39
Vacant Land Parcel
Appraisal Methodology
Cost Approach
The cost approach is based on the proposition that the informed purchaser would pay no more
for the subject than the cost to produce a substitute property with equivalent utility. This approach
is particularly applicable when the property being appraised involves relatively new improvements
that represent the highest and best use of the land, or when it is improved with relatively unique
or specialized improvements for which there exist few sales or leases of comparable properties.
Sales Comparison Approach
The sales comparison approach utilizes sales of comparable properties, adjusted for differences,
to indicate a value for the subject. Valuation is typically accomplished using physical units of
comparison such as price per square foot, price per unit, price per floor, etc., or economic units
of comparison such as gross rent multiplier. Adjustments are applied to the property units of
comparison derived from the comparable sale. The unit of comparison chosen for the subject is
then used to yield a total value.
Income Capitalization Approach
The income capitalization approach reflects the subject’s income-producing capabilities. This
approach is based on the assumption that value is created by the expectation of benefits to be
derived in the future. Specifically estimated is the amount an investor would be willing to pay to
receive an income stream plus reversion value from a property over a period of time. The two
common valuation techniques associated with the income capitalization approach are direct
capitalization and the discounted cash flow (DCF) analysis.
Application of Approaches to Value
Approach Comments
Cost Approach
Sales Comparison Approach
Income Capitalization Approach
Compiled by NKF
The Income Capitalization Approach is not applicable and is not utilized in this
appraisal.
The Sales Comparison Approach is applicable and is utilized in this appraisal.
The Cost Approach is not applicable and is not utilized in this appraisal.
Sales Comparison Approach 40
Vacant Land Parcel
Sales Comparison Approach
The sales comparison approach value is derived by analyzing closed sales, listings, or pending
sales of land properties that are similar to the subject. The sales comparison approach includes
the following steps.
Research and verify information on properties in the competitive market that are
similar to the subject and that have recently sold, are listed for sale, or are under
contract.
Select the most relevant units of comparison in the market and develop a comparative
analysis.
Examine and quantify via adjustments differences between the comparable sales and
the subject property using all appropriate elements of comparison.
Reconcile the various value indications to a value bracket and then a single value
indication.
The unit of comparison applied in this sales comparison analysis is the price per unit; based on
the number of apartments that can be built and/or are anticipated to be built on the site/project
that sold.
Density and what can be built is a primary motivation of acquisition for
redevelopment/development projects and is an approach that merits consideration when
analyzing the market value of the underlying site.
We often see development groups acquire land of this nature based on the density and what you
can do with it, as opposed to the price per-acre methodology. If 100 units can be built on 1 acre
site, the development groups usually have to pay around the same price for the 1 acre site as they
do for a larger site offering the same density; in other words, even if 4 acres could be acquired, if
only 100 units could be built on the 4-acre site similar to the 1-acre parcel, there is no reason the
development group would want to, be willing to or be able to pay a different price.
Analyzing the apartment land on a per apartment unit basis allows for consideration of the typical
motivations of buyer/seller interests and intent. Note that there are three sales used. Sales in
this area are and have been limited. There were a number reviewed, considered and evaluated but
those chosen are most reflective of a similar highest and best use.
Sales Comparison Approach 41
Vacant Land Parcel
Sales Comparison Approach 42
Vacant Land Parcel
Location Data
Location 256 Pleasant Street
City, State Northampton, MA
Market Valuation Properties
Submarket Valuation Land
County Hampshire
Physical Data
Property Type Land (MF Residential)
Use at Sale Completed
Proposed Use MF Residential Sale Data
Acres 0.39 Acres Transaction Type Closed
Land SF 16,988 SF Date February 8, 2017
Useable Acres 0.39 Acres Marketing Time N/A
Useable Land SF 16,988 SF Grantor Gail M LaBarge
Frontage 54 Grantee Valley Community Development Corporation
Visibility Average Document No.12548000175
Topography 0 Price $1,000,000
Shape Rectangular Financing Terms Cash to Seller - Buyer Obtained Financing
Corner/Interior Location Interior Price Adjustments For:
Flood Zone X Financing $0
Utilities Conditions of Sale $0
Other $0
Number of Units 55 Adjusted Price $1,000,000
Zoning GB - General Business
Allowable Bldg Area 204900422.2 Analysis
Allowable Bldg Units Price per Acre $2,564,163
Price Per SF $58.87
Verification Price per Unit $18,182
Price per FAR $82.91
Comments
Land Sale Comparable 1
The site was occupied by a 12,036 square foot building that required demolition. The property was purchased by the Valley Community Development
Corporation as a redevelopment project. They plan on demolishing any buildings that are on the site to develop an affordable housing multi-family property with
55 units. It will also contain approximately 5,000 square feet of commercial space on the 1st floor in addition to a mix of one-, two-, and three-bedroom units.
Water, Sewer, Gas, Electricity
Sales Comparison Approach 43
Vacant Land Parcel
North Square Apartments
Location Data
Location 26 Spring Street
City, State Amherst, MA
Market Valuation Properties
Submarket Valuation Land
County Hampshire
Physical Data
Property Type Land (MF Residential)
Use at Sale Under Construction
Proposed Use MF Residential Sale Data
Acres 0.34 Acres Transaction Type Closed
Land SF 14,810 SF Date August 16, 2019
Useable Acres 0.34 Acres Marketing Time N/A
Useable Land SF 14,810 SF Grantor San Realty Inc.
Frontage Grantee 26 Spring Street
Visibility Average Document No.13360000155
Topography Level Price $1,250,000
Shape Rectangular Financing Terms Cash to Seller
Corner/Interior Location Interior Price Adjustments For:
Flood Zone 0 Feet (Avg.)Financing $0
Utilities Conditions of Sale $0
Other $0
Number of Units 58 Adjusted Price $1,250,000
Zoning General Business
Allowable Bldg Area 59980.5 Analysis
Allowable Bldg Units Price per Acre $3,676,570
Price Per SF $84.40
Verification Price per Unit $21,552
Price per FAR $20.84
Comments
Land Sale Comparable 2
Water, Sewer, Gas, Electricity
The property is currently still under construction. It broke ground 3/2019 and is expected to be completed on 12/2019 estimated, There are 4 stories in the
building with a total of 60,000 square foot. The proeprty also sits on .34 acres and has a zoning of Geberal Business. It also offers 17 free parking spaces
around the entire building. The site sold for $1,250,000 or $21,551 per unit.
Sales Comparison Approach 44
Vacant Land Parcel
85 Sewall Street
Location Data
Location 85 Sewall Street
City, State Boylston, MA
Market Valuation Properties
Submarket Valuation Land
County Worcester
Physical Data
Property Type Land (MF Residential)
Use at Sale Proposed
Proposed Use MF Residential Sale Data
Acres 13.30 Acres Transaction Type Closed
Land SF 579,348 SF Date February 11, 2019
Useable Acres 13.30 Acres Marketing Time N/A
Useable Land SF 579,348 SF Grantor BETHLEHEM BIBLE CHURCH
Frontage 0 Grantee 85 SEWALL LLC
Visibility Average Document No.Book 60034, Pages 79 & 136
Topography Gently Sloping Price $1,000,000
Shape Irregular Financing Terms Cash to Seller - Buyer Obtained Financing
Corner/Interior Location Interior Price Adjustments For:
Flood Zone X Financing $0
Utilities Conditions of Sale $0
Other $0
Number of Units 66 Adjusted Price $1,000,000
Zoning MUI & RR
Allowable Bldg Area 0 Analysis
Allowable Bldg Units Price per Acre $75,188
Price Per SF $1.73
Verification Confirmed-Other Price per Unit $15,152
Price per FAR $0.00
Comments
This represents the sale of a proposed, 66-unit (10% will be affordable) apartment complex development site in Boylston near Route 146. The property is
located in a residential neighborhood. Approvals were in-place at the time of sale.
Land Sale Comparable 3
0
Sales Comparison Approach 45
Vacant Land Parcel
Analysis of Improved Comparable Data
Comparable One
Vacant land in the area to be used for development of market rate apartments. There was a
commerical buiding in place which required demolition at an estimated cost of $100,000. Plans
call for the advancement of a market rate development with 55 units.
There were adjustments needed for time/market conditions (+8% or 3%/year - .25% for each
month of time variation), and an upward adjustment of 10% to account for the $100,000 of
demolition cost associated with clearing the site to become development ready. The site is small
but there is no size adjusment needed since the price per apartment unit method is used.
Comparable Two
Small, Vacant parcel to be used for the develoment of a 58 unit complex targetting students.
Recent sale so no adjustment for time was required. The site is development ready. Although
some advancment of the project/site appears to have been advanced, this is simlar to the status
of the subject site/parcel and as such there was no adjustement needed. Similar to sale one, the
site is small but the density greater and the number of units to be built is similar.
Comparable Three
A vacant parcel in Worcester Mass, used since it is proposed to be developed with apartments; a
total of 66 units. Adjustments were needed to account for location (+10%) as the area/location
is inferior (rents and overall economics/devleopment potential for m. family) and +10% to
Subject Sale 1 Sale 2 Sale 3
Address Lot 13-A 256 Pleasant Street 26 Spring Street 85 Sewall Street
City, State Northampton, MA Northampton, MA Amherst, MA Boylston, MA
Use at Sale Assumed Vacant Completed Under Construction Proposed
Proposed Use Commercial MF Residential MF Residential MF Residential
Gross Acres 4.88 Acres 0.39 Acres 0.34 Acres 13.30 Acres
Gross Land SF 212,573 SF 16,988 SF 14,810 SF 579,348 SF
Number of Units 53 55 58 66
Zoning Commercial GB - General Business General Business MUI & RR
Transaction Type Closed Closed Closed
Buyer Valley Community
Development Corporation
26 Spring Street 85 SEWALL LLC
Seller Gail M LaBarge San Realty Inc.BETHLEHEM BIBLE CHURCH
Interest Conveyed Fee Simple Fee Simple Fee Simple Fee Simple
Transaction Date Feb-17 Aug-19 Feb-19
Price $1,000,000 $1,250,000 $1,000,000
Adj. Sale Price $1,000,000 $1,250,000 $1,000,000
Price per Gross Land Acre $2,564,163 $3,676,570 $75,188
Price Per Gross Land SF $58.87 $84.40 $1.73
Price per Usable Land Acre $2,564,163 $3,676,570 $75,188
Price Per Usable Land SF $58.87 $84.40 $1.73
Price per Unit $18,182 $21,552 $15,152
Price per FAR $82.91 $20.84 $0.00
Comparable Land Sales Summary
Sales Comparison Approach 46
Vacant Land Parcel
account for the site advancement which was not as extensive as the development advancement
on the subject site related to utilities or infrastructure.
Other Sales:
A couple of other sales and listings were considered/but not applied:
- Listing at 207 Earle St, which is part of the Village Hill Development. Located across
the street from the main site, this parcel has 1.5 acres and was listed for $125,000 or
$83,333 per acre.
- A site near University Drive and Amity Street in Northampton Sold on 6/28/2018. The
plans called for development of apartment/rental units but specifics were not
available. One report indicated that 40 townhome units might be built and if so, this
would reflect a total of $16,500 per unit.
Analysis of Adjustments
Subject Sale 1 Sale 2 Sale 3
Address Lot 13-A 256 Pleasant Street 26 Spring Street 85 Sewall Street
City, State Northampton, MA Northampton, MA Amherst, MA Boylston, MA
Gross Land Area (Acres)4.88 Acres 0.39 Acres 0.34 Acres 13.30 Acres
Land Units 53 55 58 66
Transaction Type --Closed Closed Closed
Transaction Date --Feb-17 Aug-19 Feb-19
Price per Unit $18,182 $21,552 $15,152
Property Rights 0%0%0%
Financing 0%0%0%
Conditions of Sale 0%0%0%
Market Conditions (Time)8%0%2%
Subtotal 8%0%2%
Location 0%0%10%
Demolition 10%0%0%
Zoning 0%0%0%
Size 0%0%0%
Shape 0%0%0%
Topography 0%0%0%
Others 0%0%10%
Subtotal 10%0%20%
Overall Adjustment 18%0%22%
Indicated Price per Unit $21,455 $21,552 $18,485
Compiled by NKF
Comparable Land Sales Adjustment Grid
Physical Adjustments
Transaction Adjustments
Sales Comparison Approach 47
Vacant Land Parcel
Price per Unit Conclusion:
To arrive at an indication of value by price acre, consideration is given to each of the sales.
A summary of the ranges and the conclusions are below:
Number of Units 53
Comparable Sales Indications Range Average
Unadjusted Price per Unit $15,152 - $21,552 $18,295
Adjusted Price per Unit $18,485 - $21,552 $20,497
Reconciled Value per Unit $20,000
Total Indicated Value $1,060,000
Rounded $1,060,000
Compiled by NKF
Land Value Conclusion
Reconciliation of Value 48
Vacant Land Parcel
Reconciliation of Value
The value indicated by our analyses is as follows:
The value above accounts for the current market value of the vacant site. This is to be used for
the development of apartment units, and there will be infrastructure development and costs being
implemented to allow for access/use and ingress/egress. The total cost for infrastructure that
will be implemented by the City and TCB is $661,200 (see details in the addendum). It
is anticipated that this will be in place by June of 2020. At that time it can be assumed that the
value of the development parcel (land and infrastructure) will be:
Market value of the land/site: $1,060,000
Cost of infrastructure/construction: $661,200
Soft Costs of infrastructure: $288,717
Total as of 6/2020*: $2,010,000
*Assuming completion of all infrastructure as anticipated by this date. The costs were
issued by the developer. Hard costs are in the addendum. Soft costs include Design, Bidding,
permitting, Contingency and Admin.
Cost Approach
In this case, the cost approach was not utilized.
Sales Comparison Approach
The Sales Comparison Approach is focused on comparing the subject to sales and other market
transactions with the aim to develop an indication of value that is founded on the theory of
substitution. Basically, the intention is to determine value through considering the prices of
properties which would be a substitute property to the subject. In this case, a selection of
reasonably similar sales were obtained and the adjustment process was well founded by
reasoning and direct evidence. Accordingly, primary weight is given to the sales comparison
approach.
Income Capitalization Approach
The subject property is a redevelopment site. The income approach was not developed.
Value Conclusions
Appraisal Premise Interest Appraised Date of Value Value Conclusion
Market Value "As Is"Fee Simple 10/21/2019 $1,060,000
Compiled by NKF
Assumptions and Limiting Conditions 49
Vacant Land Parcel
Assumptions and Limiting Conditions
The Appraisal contained in this Report (herein “Report”) is subject to the following assumptions
and limiting conditions:
1.Unless otherwise stated in this report, title to the property which is the subject of this report (herein
“Property”) is assumed to be good and marketable and free and clear of all liens and encumbrances
and that there are no recorded or unrecorded matters or exceptions to title that would adversely
affect marketability or value. No responsibility is assumed for the legal description, zoning,
condition of title or any matters which are legal in nature or otherwise require expertise other than
that of a professional real estate appraiser. This report shall not constitute a survey of the Property.
2.Unless otherwise stated in this report, it is assumed: that the improvements on the Property are
structurally sound, seismically safe and code conforming; that all building systems
(mechanical/electrical, HVAC, elevator, plumbing, etc.) are in good working order with no major
deferred maintenance or repair required; that the roof and exterior are in good condition and free
from intrusion by the elements; that the Property and improvements conform to all applicable local,
state, and federal laws, codes, ordinances and regulations including environmental laws and
regulations. No responsibility is assumed for soil or subsoil conditions or engineering or structural
matters. The Property is appraised assuming that all required licenses, certificates of occupancy,
consents, or other legislative or administrative authority from any local, state, or national
government or private entity or organization have been or can be obtained or renewed for any use
on which the value estimates contained in this report is based, unless otherwise stated. The
physical condition of the Property reflected in this report is solely based on a visual inspection as
typically conducted by a professional appraiser not someone with engineering expertise.
Responsible ownership and competent property management are assumed.
3.Unless otherwise stated in this report, this report did not take into consideration the existence of
asbestos, PCB transformers or other toxic, hazardous, or contaminated substances or
underground storage tanks, or the cost of encapsulation, removal or remediation thereof. Real
estate appraisers are not qualified to detect such substances. The presence of substances such
as asbestos, urea formaldehyde foam insulation, contaminated groundwater or other potentially
hazardous materials and substances may adversely affect the value of the Property. Unless
otherwise stated in this report, the opinion of value is predicated on the assumption that there is
no such material or substances at, on or in the Property.
4.All statements of fact contained in this report as a basis of the analyses, opinions, and conclusions
herein are true and correct to the best of the appraiser's actual knowledge and belief. The appraiser
is entitled to and relies upon the accuracy of information and material furnished by the owner of
the Property or owner’s representatives and on information and data provided by sources upon
which members of the appraisal profession typically rely and that are deemed to be reliable by such
members. Such information and data obtained from third party sources are assumed to be reliable
and have not been independently verified. No warranty is made as to the accuracy of any of such
information and data. Any material error in any of the said information or data could have a
Assumptions and Limiting Conditions 50
Vacant Land Parcel
substantial impact on the conclusions of this Report. The appraiser reserves the right to amend
conclusions reported if made aware of any such error.
5.The opinion of value stated in this report is only as of the date of value stated in this report. An
appraisal is inherently subjective and the conclusions stated apply only as of said date of value,
and no representation is made as to the effect of subsequent events. This report speaks only as
of the date hereof.
6.Any projected cash flows included in the analysis are forecasts of estimated future operating
characteristics and are predicated on the information and assumptions contained within this
report. Any projections of income, expenses and economic conditions utilized in this report are not
predictions of the future. Rather, they are estimates of market expectations of future income and
expenses. The achievement of any financial projections will be affected by fluctuating economic
conditions and is dependent upon other future occurrences that cannot be assured. Actual results
may vary from the projections considered herein. There is no warranty or assurances that these
forecasts will occur. Projections may be affected by circumstances beyond anyone’s knowledge
or control. Any income and expense estimates contained in this report are used only for the
purpose of estimating value and do not constitute predictions of future operating results.
7.The analyses contained in this report may necessarily incorporate numerous estimates and
assumptions regarding Property performance, general and local business and economic
conditions, the absence of material changes in the competitive environment and other matters.
Some estimates or assumptions, however, inevitably will not materialize, and unanticipated events
and circumstances may occur; therefore, actual results achieved during the period covered by the
analysis will vary from estimates, and the variations may be material.
8.All prospective value opinions presented in this report are estimates and forecasts which are
prospective in nature and are subject to considerable risk and uncertainty. In addition to the
contingencies noted in the preceding paragraphs, several events may occur that could
substantially alter the outcome of the estimates such as, but not limited to changes in the economy,
interest rates, capitalization rates, behavior of consumers, investors and lenders, fire and other
physical destruction, changes in title or conveyances of easements and deed restrictions, etc. In
making prospective estimates and forecasts, it is assumed that conditions reasonably foreseeable
at the present time are consistent or similar with the future.
9.The allocations of value for land and improvements must not be used in conjunction with any other
appraisal and are invalid if so used. This report shall be considered only in its entirety. No part of
this report shall be utilized separately or out of context.
10.Neither all nor any part of the contents of this report (especially any conclusions as to value, the
identity of the appraiser, or any reference to the Appraisal Institute) shall be disseminated through
advertising media, public relations media, news media or any other means of communication
(including without limitation prospectuses, private offering memoranda and other offering material
provided to prospective investors) without the prior written consent of the Firm. Possession of this
report, or a copy hereof, does not carry with it the right of publication.
11.Client and any other Intended User identified herein should consider this report and the opinion of
value contained herein as only one factor together with its own independent considerations and
Assumptions and Limiting Conditions 51
Vacant Land Parcel
underwriting guidelines in making any decision or investment or taking any action regarding the
Property. Client agrees that Firm shall not be responsible in any way for any decision of Client or
any Intended User related to the Property or for the advice or services provided by any other
advisors or contractors. The use of this report and the appraisal contained herein by anyone other
than an Intended User identified herein, or for a use other than the Intended Use identified herein,
is strictly prohibited. No party other than an Intended User identified herein may rely on this report
and the appraisal contained herein.
12.Unless otherwise stated in the agreement to prepare this report, the appraiser shall not be required
to participate in or prepare for or attend any judicial, arbitration, or administrative proceedings.
13.The Americans with Disabilities Act (ADA) became effective January 26, 1992. No survey or
analysis of the Property has been made in connection with this report to determine whether the
physical aspects of the improvements meet the ADA accessibility guidelines. No expertise in ADA
issues is claimed, and the report renders no opinion regarding the Property’s compliance with ADA
regulations. Inasmuch as compliance matches each owner’s financial ability with the cost to cure
the non-conforming physical characteristics of a property, a specific study of both the owner’s
financial ability and the cost to cure any deficiencies would be needed for the Department of
Justice to determine compliance.
14.Acceptance and/or use of this report constitutes full acceptance of these Assumptions and
Limiting Conditions and any others contained in this report, including any Extraordinary
Assumptions and Hypothetical Conditions, and is subject to the terms and conditions contained in
the agreement to prepare this report and full acceptance of any limitation of liability or claims
contained therein.
Addenda
Vacant Land Parcel
Addendum
Glossary of Terms
Land Disposition Agreement
Reciprocal Easement
Engagement Letter
Qualifications
Addenda
Vacant Land Parcel
Glossary of Terms
Addenda
Vacant Land Parcel
The following definitions are derived from The Dictionary of Real Estate Appraisal, 6th ed.
(Chicago: Appraisal Institute, 2015).
Absorption Period: The actual or expected period required from the time a property, group of
properties, or commodity is initially offered for lease, purchase, or use by its eventual users until all
portions have been sold or stabilized occupancy has been achieved.
Absorption Rate: 1) Broadly, the rate at which vacant space in a property or group of properties for
sale or lease has been or is expected to be successfully sold or leased over a specified period of
time. 2) In subdivision analysis, the rate of sales of lots or units in a subdivision.
Ad Valorem Tax: A tax levied in proportion to the value of the thing(s) being taxed. Exclusive of
exemptions, use-value assessment provisions, and the like, the property tax is an ad valorem tax.
(International Association of Assessing Officers [IAAO])
Assessed Value: The value of a property according to the tax rolls in ad valorem taxation; may be
higher or lower than market value, or based on an assessment ratio that is a percentage of market
value.
Cash Equivalency: An analytical process in which the sale price of a transaction with nonmarket
financing or financing with unusual conditions or incentives is converted into a price expressed in
terms of cash or its equivalent.
Contract Rent: The actual rental income specified in a lease.
Disposition Value: The most probable price that a specified interest in property should bring under
the following conditions: 1) Consummation of a sale within a specified time, which is shorter than
the typical exposure time for such a property in that market. 2) The property is subjected to market
conditions prevailing as of the date of valuation. 3) Both the buyer and seller are acting prudently
and knowledgeably. 4) The seller is under compulsion to sell. 5) The buyer is typically motivated.
6) Both parties are acting in what they consider to be their best interests. 7) An adequate marketing
effort will be made during the exposure time. 8) Payment will be made in cash in US dollars (or the
local currency) or in terms of financial arrangements comparable thereto. 9) The price represents
the normal consideration for the property sold, unaffected by special or creative financing or sales
concessions granted by anyone associated with the sale. This definition can also be modified to
provide for valuation with specified financing terms.
Effective Rent: Total base rent, or minimum rent stipulated in a lease, over the specified lease term
minus rent concessions; the rent that is effectively paid by a tenant net of financial concessions
provided by a landlord.
Excess Land: Land that is not needed to serve or support the existing use. The highest and best
use of the excess land may or may not be the same as the highest and best use of the improved
parcel. Excess land has the potential to be sold separately and is valued separately. See also
surplus land.
Addenda
Vacant Land Parcel
Excess Rent: The amount by which contract rent exceeds market rent at the time of the appraisal;
created by a lease favorable to the landlord (lessor) and may reflect unusual management,
unknowledgeable or unusually motivated parties, a lease execution in an earlier, stronger rental
market, or an agreement of the parties.
Exposure Time: 1) The time a property remains on the market. 2) [The] estimated length of time
that the property interest being appraised would have been offered on the market prior to the
hypothetical consummation of a sale at market value on the effective date of the appraisal.
Extraordinary Assumption: An assumption, directly related to a specific assignment, as of the
effective date of the assignment results, which, if found to be false, could alter the appraiser’s
opinions or conclusions. See also hypothetical condition.
Fee Simple Estate: Absolute ownership unencumbered by any other interest or estate, subject only
to the limitations imposed by the governmental powers of taxation, eminent domain, police power,
and escheat.
Floor Area Ratio (FAR): The relationship between the above-ground floor area of a building, as
described by the zoning or building code, and the area of the plot on which it stands; in planning
and zoning, often expressed as a decimal, e.g., a ratio of 2.0 indicates that the permissible floor
area of a building is twice the total land area.
Frictional Vacancy: The amount of vacant space needed in a market for its orderly operation.
Frictional vacancy allows for move-ins and move-outs.
Full Service Lease: See gross lease.
General Vacancy: A method of calculating any remaining vacancy and collection loss
considerations when using discounted cash flow (DCF) analysis, where turnover vacancy has been
used as part of the income estimate. The combined effects of turnover vacancy and general
vacancy relate to total vacancy and collection loss.
Going-Concern Premise: One of the premises under which the total assets of a business can be
valued; the assumption that a company is expected to continue operating well into the future
(usually indefinitely).
Going Concern Value: An outdated label for the market value of all the tangible and intangible
assets of an established and operating business with an indefinite life, as if sold in aggregate; more
accurately termed the market value of the going concern or market value of the total assets of the
business.
Gross Building Area (GBA): 1) Total floor area of a building, excluding unenclosed areas, measured
from the exterior of the walls of the above grade area. This includes mezzanines and basements if
and when typically included in the market area of the type of property involved. 2) Gross leasable
area plus all common areas. 3) For residential space, the total area of all floor levels measured
from the exterior of the walls and including the superstructure and substructure basement; typically
does not include garage space.
Addenda
Vacant Land Parcel
Gross Lease: A lease in which the landlord receives stipulated rent and is obligated to pay all of
the property’s operating and fixed expenses; also called full-service lease.
Hypothetical Condition: 1) A condition that is presumed to be true when it is known to be false.
(Appraisal Institute: The Standards of Valuation Practice [SVP]) 2) A condition, directly related to
a specific assignment, which is contrary to what is known by the appraiser to exist on the effective
date of the assignment results, but is used for the purpose of analysis. See also extraordinary
assumption.
Intended Users: 1) The party or parties the valuer intends will use the report. (SVP) 2) The client
and any other party as identified, by name or type, as users of the appraisal or appraisal review
report by the appraiser on the basis of communication with the client at the time of the assignment.
(USPAP, 2016-2017 ed.)
Investment Value: 1) The value of a property to a particular investor or class of investors based on
the investor’s specific requirements. Investment value may be different from market value because
it depends on a set of investment criteria that are not necessarily typical of the market.
2)The value of an asset to the owner or a prospective owner for individual investment or
operational objectives. (International Valuation Standards [IVS])
Land-to-Building Ratio: The proportion of land area to gross building area; one of the factors
determining comparability of properties.
Lease: A contract in which the rights to use and occupy land, space, or structures are transferred
by the owner to another for a specified period of time in return for a specified rent.
Leased Fee Interest: The ownership interest held by the lessor, which includes the right to receive
the contract rent specified in the lease plus the reversionary right when the lease expires.
Leasehold Interest: The right held by the lessee to use and occupy real estate for a stated term
and under the conditions specified in the lease.
Lessee: One who has the right to occupancy and use of the property of another for a period of time
according to a lease agreement.
Lessor: One who conveys the rights of occupancy and use to others under a lease agreement.
Liquidation Value: The most probable price that a specified interest in property should bring under
the following conditions: 1) Consummation of a sale within a short time period. 2) The property is
subjected to market conditions prevailing as of the date of valuation. 3) Both the buyer and seller
are acting prudently and knowledgeably. 4) The seller is under extreme compulsion to sell. 5) The
buyer is typically motivated. 6) Both parties are acting in what they consider to be their best
interests. 7) A normal marketing effort is not possible due to the brief exposure time.
8) Payment will be made in cash in US dollars (or the local currency) or in terms of financial
arrangements comparable thereto. 9) The price represents the normal consideration for the
property sold, unaffected by special or creative financing or sales concessions granted by anyone
Addenda
Vacant Land Parcel
associated with the sale. This definition can also be modified to provide for valuation with
specified financing terms.
Market Rent: The most probable rent that a property should bring in a competitive and open market
reflecting the conditions and restrictions of a specified lease agreement, including the rental
adjustment and revaluation, permitted uses, use restrictions, expense obligations, term,
concessions, renewal and purchase options, and tenant improvements (TIs).
Market Value: A type of value that is the major focus of most real property appraisal assignments.
Both economic and legal definitions of market value have been developed and refined, such as the
following. 1) The most widely accepted components of market value are incorporated in the
following definition: The most probable price, as of a specified date, in cash, or in terms equivalent
to cash, or in other precisely revealed terms, for which the specified property rights should sell after
reasonable exposure in a competitive market under all conditions requisite to a fair sale, with the
buyer and seller each acting prudently, knowledgeably, and for self-interest, and assuming that
neither is under undue duress. 2) Market value is described, not defined, in the Uniform Standards
of Professional Appraisal Practice (USPAP) as follows: A type of value, stated as an opinion, that
presumes the transfer of a property (i.e., a right of ownership or a bundle of such rights), as of a
certain date, under specific conditions set forth in the definition of the term identified by the
appraiser as applicable in an appraisal. 1
Market Value of the Going Concern: The market value of an established and operating business
including the real property, personal property, financial assets, and the intangible assets of the
business.
Marketing Time: An opinion of the amount of time it might take to sell a real or personal property
interest at the concluded market value level during the period immediately after the effective date
of an appraisal. Marketing time differs from exposure time, which is always presumed to precede
the effective date of an appraisal.
Modified Gross Lease: A lease in which the landlord receives stipulated rent and is obligated to
pay some, but not all, of the property’s operating and fixed expenses. Since assignment of
expenses varies among modified gross leases, expense responsibility must always be specified.
In some markets, a modified gross lease may be called a double net lease, net lease, partial net
lease, or semi-gross lease.
Net Lease: A lease in which the landlord passes on all expenses to the tenant. See also gross lease;
modified gross lease.
Net Net Net Lease: An alternative term for a type of net lease. In some markets, a net net net lease
is defined as a lease in which the tenant assumes all expenses (fixed and variable) of operating a
property except that the landlord is responsible for structural maintenance, building reserves, and
management; also called NNN lease, triple net lease, or fully net lease.
1 The actual definition of value used for this appraisal is contained within the body of the report. The
definition of market value given above is general in viewpoint and is only provided for amplification.
Addenda
Vacant Land Parcel
Occupancy Rate: 1) The relationship or ratio between the potential income from the currently
rented units in a property and the income that would be received if all the units were occupied.
2) The ratio of occupied space to total rentable space in a building.
Overage Rent: The percentage rent paid over and above the guaranteed minimum rent or base
rent; calculated as a percentage of sales in excess of a specified breakpoint sales volume.
Percentage Rent: Rental income received in accordance with the terms of a percentage lease;
typically derived from retail store and restaurant tenants and based on a certain percentage of their
gross sales.
Prospective Opinion of Value: A value opinion effective as of a specified future date. The term
does not define a type of value. Instead, it identifies a value opinion as being effective at some
specific future date. An opinion of value as of a prospective date is frequently sought in connection
with projects that are proposed, under construction, or under conversion to a new use, or those that
have not yet achieved sellout or a stabilized level of long-term occupancy.
Rentable Area: For office or retail buildings, the tenant’s pro rata portion of the entire office floor,
excluding elements of the building that penetrate through the floor to the areas below. The rentable
area of a floor is computed by measuring to the inside finished surface of the dominant portion of
the permanent building walls, excluding any major vertical penetrations of the floor. Alternatively,
the amount of space on which the rent is based; calculated according to local practice.
Retrospective Value Opinion: A value opinion effective as of a specified historical date. The term
retrospective does not define a type of value. Instead, it identifies a value opinion as being effective
at some specific prior date. Value as of a historical date is frequently sought in connection with
property tax appeals, damage models, lease renegotiation, deficiency judgments, estate tax, and
condemnation. Inclusion of the type of value with this term is appropriate, e.g., “retrospective
market value opinion.”
Shell Rent: The typical rent paid for retail, office, or industrial tenant space based on minimal “shell”
interior finishes (called vanilla finish or white wall finish in some areas). Usually the landlord
delivers the main building shell space or some minimum level of interior build-out, and the tenant
completes the interior finish, which can include wall, ceiling, and floor finishes, mechanical
systems, interior electricity, and plumbing. Typically these are long-term leases with tenants paying
all or most property expenses.
Surplus Land: Land that is not currently needed to support the existing use but cannot be separated
from the property and sold off for another use. Surplus land does not have an independent highest
and best use and may or may not contribute value to the improved parcel. See also excess land.
Turnover Vacancy: A method of calculating vacancy allowance that is estimated or considered as
part of the potential income estimate when using discounted cash flow (DCF) analysis. As units or
suites turn over and are available for re-leasing, the periodic vacancy time frame (vacancy window)
to release the space is considered.
Addenda
Vacant Land Parcel
Usable Area: 1) For office buildings, the actual occupiable area of a floor or an office space;
computed by measuring from the finished surface of the office side of corridor and other
permanent walls, to the center of partitions that separate the office from adjoining usable areas,
and to the inside finished surface of the dominant portion of the permanent outer building walls.
Sometimes called net building area or net floor area. See also floor area. 2) The area that is actually
used by the tenants measured from the inside of the exterior walls to the inside of walls separating
the space from hallways and common areas.
Use Value: The value of a property assuming a specific use, which may or may not be the property’s
highest and best use on the effective date of the appraisal. Use value may or may not be equal to
market value but is different conceptually. See also value in use.
Value In Use: The value of a property assuming a specific use, which may or may not be the
property’s highest and best use on the effective date of the appraisal. Value in use may or may not
be equal to market value but is different conceptually. See also use value.
Value Indication: A valuer’s conclusion of value resulting from the application of an approach to
value, e.g., the value indication by the sales comparison approach.
Addenda
Vacant Land Parcel
Land Disposition Agreement
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VILLAGE AT HOSPITAL HILL
LAND DISPOSITION AGREEMENT
This Land Disposition Agreement (the “Agreement”) dated as of the ____ day of August,
2017 (the “Effective Date”) by and between the HOSPITAL HILL DEVELOPMENT LLC (the
“Company”), a Delaware limited liability company, having a principal address c/o Massachusetts
Development Finance Agency, 99 High Street, Boston, Massachusetts 02110 and THE
COMMUNITY BUILDERS, INC. and its designee nominee, a to-be-created TCB entity
(together with any successor thereto, the “Purchaser”), a Massachusetts not-for-profit
corporation, having a principal address of 185 Dartmouth Street, 9th Floor, Boston,
Massachusetts 02116.
RECITALS
A. The Community Builders, Inc. and the Massachusetts Development Finance
Agency (the “Agency”) are the sole members of the Company, and the Agency is the Manager of
the Company. The Company was formed for the purpose of the acquisition and redevelopment
of a portion of the former Northampton State Hospital site in Northampton, Hampshire County,
Massachusetts (the “Property”).
B. The Company has acquired title to the Property in accordance with a Land
Disposition Agreement dated September 5, 2002 between the Commonwealth of Massachusetts,
acting by and through its Division of Capital Asset Management and Maintenance (“DCAM”),
and The Community Builders (the “LDA”) pursuant to a Release Deed from the Commonwealth
of Massachusetts, acting by and through DCAM, to the Company dated November 25, 2002 and
recorded in the Hampshire County Registry of Deeds (the “Registry”) at Book 6925, Page 302.
C. The Property includes a parcel of land shown on the plan entitled “THE
VILLAGE AT HOSPITAL HILL, PHASE ONE DEFINITIVE SUBDIVISION,
NORTHAMPTON, MASSACHUSETTS, dated November 20, 2003, Revised: January 22, 2004,
Revised: February 23, 2004 (Sheets 1-35), Revised April 30, 2004 (Sheet 36), prepared by Beals
and Thomas, Inc., 144 Turnpike Road, Northborough, MA 01772”, and recorded with Registry
in Plan Book 202, Page 75, and as it may be revised from time to time showing Lots 1 through
20 (the “Initial Plan”). The North Campus of the Village at Hospital Hill is comprised of lots
numbered 13, 14, 15, 16, 17, 18, 19, 20, Parcel A and Parcel B on the Initial Plan (the “North
Campus”) as further subdivided by AMENDMENT TO THE PHASE 1 DEFINITIVE
SUBDIVISION PLAN, THE VILLAGE AT HOSPITAL HILL in NORTHAMPTON, MA
(Hampshire County) dated May 27, 2005; Revised: November 8, 2005, Revised January 25,
2006 and prepared by Beal and Thomas, Inc., 144 Turnpike Road, Southborough, MA 01772
recorded with Registry in Plan Book 210, Page 31 showing Lots 13 through 20, Parcels A and B
and the plan entitled VILLAGE HILL, NORTHAMPTON, MASSACHUSETTS DEFINITIVE
PLAN dated March 26, 2007 and prepared by The Berkshire Design Group, Inc., 4 Allen Place,
Northampton, MA 01060 recorded with the Registry in Plan Book 216, Page 7 showing Parcel
13-A, Lot 14, Parcel A, Lot 18, Lot 19, Lot 20-A, and Lots 21 through 25 and Lot B-1 and a plan
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entitled “Moser Street Definitive Plan, Village Hill, Northampton, Massachusetts, Hospital Hill
Development LLC, Northampton, Massachusetts dated July 16, 2009 prepared by Sherman &
Frydryk, Landing Surveying and Engineering and Tighe & Bond Consulting Engineers recorded
with the Registry at Book 221, Page 45 showing the further subdivision of a portion of Lot 13-A
into Lots A2 through A27 and Lot 22 (Rev) (collectively, the “Plan”). The Company subjected
the North Campus to covenants contained in that certain Declaration of Covenants, Restrictions,
Maintenance and Easement Agreement dated as of October 8, 2004 and recorded in the Registry
at Book 8024, Page 275 on October 15, 2004 as amended by that Amendment to Declaration of
Covenants, Restrictions, Maintenance and Easement Agreement dated September 22, 2006 and
recorded in the Hampshire Registry of Deeds at Book 9016, Page 215, on January 22, 2007, as
restated and amended by Consolidated Restatement and Amendment of Declaration of
Covenants, Restrictions, Maintenance and Easement Agreement dated April 17, 2008 and
recorded in the Registry at Book 9457, Page 1 on April 17, 2008, as further amended by the
Supplemental Declaration dated November 2, 2009 and recorded in the Registry at Book 10019,
Page 271, as further amended by the Second Supplemental Declaration dated on or about May
21, 2012 and recorded in the Registry at Book 10921, Page 26, as further amended by the Third
Supplemental Declaration dated July 20, 2012 and recorded in the Registry at Book 10984, Page
128, as further amended by the Fourth Supplemental Declaration dated October 24, 2013 and
recorded in the Registry at Book 11503, Page 113, as further amended by the Fifth Supplemental
Declaration dated November 24, 2015 and recorded in the Registry at Book 12141, Page 297, as
further amended by the Sixth Supplemental Declaration dated September 13, 2016 and recorded
in the Registry at Book 12403, Page 297, and as further amended by the Seventh Supplemental
Declaration dated as of July 28, 2017 and recorded in the Hampshire County Registry of Deeds at Book
12700, Page 281 (collectively referred to as the “Declaration”).
D. The Company created the Village at Hospital Hill–North Association (“North
Campus Association”), an association of the owners of individual lots comprising the North
Campus to maintain the subdivision roads shown on the Plan until accepted by the City of
Northampton, the culverts and detention areas, the easement areas and drainage facilities, and
any shared parking lots and utilities for the North Campus.
E. The Agency, as the Manager of the Company, is responsible for the overall
redevelopment of the Property. The Company intends to convey to the Purchaser: (i) a portion of
the North Campus consisting of an approximately 26.4 acre parcel, located north of Ford
Crossing, as more particularly shown on Exhibit A (“Parcel A”) for the development of a three-
story building consisting of approximately fifty three (53) residential units (“Purchaser Project
A”) and (ii) a portion of the North Campus shown as “Lot 20-A” on the Plan (“Parcel B” and
collectively with Parcel A, the “Premises”) for the development of a mixed-use building
consisting of approximately twelve (12) residential units and approximately 2,500 square feet of
commercial space (“Purchaser Project B” and collectively with Purchaser Project A, the
“Purchaser Project”) in accordance with the LDA, and this Agreement, upon the terms and
conditions hereinafter set forth.
F. The Company and the Purchaser desire to set forth in this Agreement the terms
and conditions under which the Purchaser will proceed with the residential development of the
Purchaser Project in accordance with and subject to all of the provisions of the LDA, the Design
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Documents (more particularly described in Article VIII below), the Master Plan and all other
applicable provisions of this Agreement.
H. The Company and the Purchaser desire to provide for the conveyance of the
Premises by the Company to the Purchaser as set forth in this Agreement.
AGREEMENTS
NOW THEREFORE, in furtherance of the foregoing and in consideration of good and
valuable consideration and the mutual covenants contained herein, the receipt of which and
sufficiency of which is hereby acknowledged, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
In addition to the terms defined elsewhere herein (including in the Recitals hereto), the
following terms shall have the meanings ascribed to them in this Article I for purposes of this
Agreement.
“Area Median Income” means the median income of the Springfield, MA MSA, as
adjusted for family size, as determined from time to time by the U.S. Department of Housing and
Urban Development pursuant to Section 8 of the United States Housing Act, as amended.
“Business Day” means any day of the week other than Saturday, Sunday, or a federal or
state legal holiday.
“Closing or Closing Date” means the date for the conveyance of any portion of the
Premises from the Company to the Purchaser pursuant to the terms of this Agreement.
“Company’s Obligations” shall have the meaning set forth in Section 2.5 of this
Agreement.
“Company’s Representations” means the representations of the Company set forth in
Section 10.1 of this Agreement only.
“Construction Contracts” means all contracts for the construction of any portion of the
Purchaser Project entered into by the Purchaser or its agents.
“Construction Documents” has the meaning set forth in Article VIII of this Agreement.
“Commercial Space” means approximately 2,500 square feet of commercial space to be
constructed on Parcel B as part of the Purchaser Project.
“Design Documents” shall mean the Schematic Design Plans and the Construction
Documents as further discussed in Article VIII of this Agreement.
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“Design Guidelines” means “Design Guidelines: Village at Hospital Hill, Northampton,
Massachusetts” prepared by Beals and Thomas, Inc. dated July 17, 2003 and revised July 2, 2004
and the Residential Architectural Style Guide prepared by CBT Architects dated July 2007.
“Development Requirements” shall have the meaning set forth in Article VII of this
Agreement.
“Flat Building” means a three-story apartment building consisting of approximately 53
dwelling units and located on Parcel A.
“Force Majeure” means (i) events of war, civil commotion, foreign military
commitments, (ii) acts of God, fire or other casualty of the elements, (iii) strikes, walkouts,
boycotts, shortages of labor, materials or equipment or (iv) other causes beyond the reasonable
control of a party, but not including the inability of such party to pay any monetary sum for
which it is obligated, regardless of the reason.
“Master Plan” means the conceptual master plan, attached hereto as Exhibit B, as such
documents may be modified or amended from time to time.
“Mixed Use Building” means a three-story building consisting of approximately 12
dwelling units and the Commercial Space and to be located on Parcel B.
“Purchaser Project” means, collectively (i) the development of a three-story building
consisting of approximately fifty-three (53) residential units on Parcel A and (ii) the
development of a mixed-use building consisting of approximately twelve (12) residential units
and approximately 2,500 square feet of commercial space on Parcel B. The project shall have no
more than sixty-five (65) residential units of which no less than forty percent of the total number
of units shall be made available to households earning incomes between 80% and 120% of the
Area Median Income.
“Unit” means a dwelling unit located in the Flat Building or in the Mixed Use Building.
ARTICLE II
PURCHASE AND DEVELOPMENT
Section 2.1 Agreement to Sell and Purchase. Subject to the terms and provisions of
this Agreement, the Company agrees to sell the Premises to the Purchaser, and the Purchaser
agrees to purchase and accept the Premises from the Company, all (i) the certain land consisting
of an approximately 26.4 acres of land located in Northampton, Hampshire County,
Massachusetts and more particularly shown on the Parcel A Plan attached hereto as Exhibit A
and (ii) the certain land consisting of an approximately 0.6 acres of land shown as “Lot 20-A” on
the Plan, together with all privileges, rights, easements and appurtenances belonging to such
parcels of land and all rights, title and interest (if any) of the Company in and to any streets,
alleys, passages or other rights of way or appurtenances included in, adjacent to or used in
connection with such parcels of land.
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Section 2.2 Purchaser Project. The Purchaser Project shall consist of (i) the
permitting, design, construction and leasing of Units in the Flat Building and (ii) the permitting,
design, construction and leasing of the Units and Commercial Space in the Mixed-Use Building.
No more than thirty-nine (39) Units shall be available to households earning incomes at or below
sixty percent (60%) of Area Median Income (“AMI”). No less than twenty-six (26) Units would
be available to households earning incomes between eighty percent (80%) and one hundred
twenty percent (120%) of AMI; provided that the household income requirements for such 26
Units is consistent with the requirements of federal or state financing to be obtained for the
Purchaser Project . The Purchaser Project shall include, without limitation, the following:
(a) Permitting, design and construction of the Flat Building and the Mixed
Use Building pursuant to the approved Design Documents;
(b) Design and construction of associated infrastructure, roadways, pathways
as shown on the Conceptual Master Plan, site improvements and landscaping for the Flat
Building and the Mixed Use Building;
(c) Design, construction and maintenance of certain recreational areas
pursuant to the approved Design Documents;
(d) Design and construction of necessary low impact development elements
and, if required, detention basin, to manage stormwater and surface water on the Premises.
The subdivision roadway to be constructed as part of the Purchaser Project shall be designed to
public roadway specifications of the City of Northampton and shall be designed in conjunction
with and to accommodate the Company’s proposed development of the adjacent 5.9 acre parcel,
as shown on the Site Plan, in order to facilitate such future development.
The Purchaser acknowledges that the Company would not agree to sell the Premises to the
Purchaser except for the commitment of the Purchaser to undertake and complete the
construction of the Purchaser Project in accordance with the Development Requirements (as
defined in Section 7.1). The Premises is an integral part of the Property, which is being
redeveloped by the Company as a mixed-use community and inclusion of the Purchaser Project
is critical to the Company’s marketing plans and the overall success of the development of the
Property. Accordingly, the Purchaser acknowledges and agrees that its covenants and
agreements with respect to the construction of the Purchaser Project on the Premises as contained
in this Agreement shall survive the Closing. Moreover, certain residential obligations and
restrictions shall be imposed on the Premises as restrictive covenants, in accordance with Article
VII of this Agreement, running with the land and binding upon the Purchaser’s permitted
successors in title to the Premises.
Section 2.3 Stormwater Management. The Purchaser shall use low impact
development methods to the maximum extent possible in order to reduce and manage all on-site
stormwater or surface water at the Premises. The Purchaser shall be responsible for the retention
and drainage of all on-site stormwater or surface water at the Premises and in accordance with
the City and all other governmental authorities. The Company shall grant the Purchaser the
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necessary drainage easements for the discharge of on-site stormwater or surface water into the
off-site facilities for the retention and drainage of stormwater and surface water provided that: (i)
the Purchaser obtains the necessary approvals from the City to discharge into such off-site
facilities and (ii) the Purchaser is responsible for all costs and expenses associated with
determining the capacity of such off-site facilities and making any necessary adjustments in such
off-site facilities in order to provide the necessary capacity of such off-site facilities. If Premises
conditions require modification of existing off-site drainage structures by the Purchaser and the
Purchaser has obtained all governmental approvals for the alteration of off-site drainage
structures on the Company’s land, then the Company shall grant the Purchaser an easement to
enter such off-site facilities to complete any approved alterations in accordance with plans and
orders as approved by governmental authorities and the Company.
Section 2.4 Master Schedule. On or before the date that is thirty (30) days after the
date of this Agreement, the Purchaser shall develop and submit to the Company for review and
approval a master schedule which sets forth the anticipated timeframe for each component of the
design, permitting, construction and leasing required for the completion of the Purchaser Project
(the “Master Schedule”). The Master Schedule shall become part of this Agreement without any
further amendment or action by the parties. The Purchaser shall update the Master Schedule in
the case of any event which would cause a material delay in meeting the milestone dates shown
on the Master Schedule, however, failure to meet any interim dates shown on the Master
Schedule, shall not constitute a default under the provisions of this Agreement.
The Purchaser shall use good faith efforts to complete the Purchaser Project on or before
the date that is twenty-four (24) calendar months after the Closing Date (as defined in Section
6.1) (the “Completion Date”).
The topcoat of any roadway for the Purchaser Project shall be installed no later than the
date that is nine (9) months after the issuance of certificate of occupancy for the Flat Building of
Purchaser Project. Without limiting the requirement of the foregoing sentence, all topcoats for
all roadways shall be installed no later than the Completion Date.
Section 2.5 The Company’s Obligations. The Company shall have no obligation for
the preparation or development of the Premises for construction of the Purchaser Project except
as set forth below:
(a) The Company shall not grant any utility or access easements or any other
easements, restrictions or encumbrances over the Premises that would prevent the Purchaser
from obtaining certificates of occupancy from the City of Northampton or prevent the Purchaser
from constructing the Purchaser Project in accordance with the Design Documents, or
substantially increase the cost to develop the Purchaser Project, or otherwise adversely affect the
Purchaser’s construction of the Purchaser Project or marketability thereof.
(b) The Company shall grant to the Purchaser easements reasonably necessary for
the development of the Premises to the extent that such easements do not interfere with or
adversely affect the Company Development Activities (as defined in Section 7.3), or the
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Company Approvals (as defined in Section 7.3) provided that such grant shall not be at any
additional cost or expense to the Company.
Section 2.6 Site Plan Approval. Pursuant to the terms and conditions of the Special
Permit Decision on September 26, 2002, which is recorded in the Registry in Book 6835, Page
81, as amended by an Amendment to the Special Permit issued on August 14, 2003 and recorded
in the Registry in Book 8024, Page 249, and further amendment on February 19, 2004 in accord
with a settlement agreement dated January 30, 2004 (Land Court No. 292406) which is recorded
in the Registry in Book 8024, Page 252, and further amended by an Amendment to the Special
Permit dated August 6, 2007 and record in the Registry at Book 9282, Page 103 and further
amended by the Amendment to Special Permit dated March 6, 2009 and recorded in the Registry
in Book 9957, Page 56 (collectively, including the original Special Permit and all Amendments
thereto, the “Special Permit”), site plan review and approval by the City of Northampton’s
Planning Board is required prior to the issuance of a building permit for any lot on the North
Campus. Because Purchaser’s Project shall include the construction of roadways and further
subdivision of a portion of the Property known as “Lot 13-A”, the Purchaser is also required to
obtain subdivision approval by the City of Northampton’s Planning Board in accordance with
Mass. Gen. Laws. C. 41, §81K et seq.
Except as extended in accordance with Section 5.7(b), no later than ninety (90) days after
the approval (or conditional approval) of the Schematic Design Plans by the Company, the
Purchaser, working cooperatively with the Company, and using the Schematic Design Plans
submitted by the Purchaser and approved by the Company, pursuant to Section 8.2, shall obtain
site plan and subdivision approval for the development lots that constitute the Premises (the “Site
Plan Approval”). Within ten (10) Business days of the Company’s issuance of a Notice of
Approval or a Notice of Conditional Approval concerning the Schematic Design Plans in
accordance with Section 8.2 of this Agreement, the Purchaser shall submit its site plan and
subdivision plan applications (collectively, the “Site Plan Application”) to the Company for its
reasonable determination that it conforms to the Schematic Design Plans approval and, if so, for
its execution of the Site Plan Application. The Company shall have ten (10) Business Days from
its receipt of the Site Plan Application to review the application (“Site Application Review
Period”). In the event that the Company does not respond to Purchaser’s submittal of the Site
Plan Application on or before the end of the Site Plan Application Review Period, the Company
shall be deemed to have approved the Site Plan Application, provided that, in submitting the Site
Plan Application for review and approval, the Purchaser shall have the following legend
prominently at the top of the transmittal letter: “NOTICE PURSUANT TO SECTION 2.6 OF
THE LAND DISPOSITION AGREEMENT: IMPORTANT RIGHTS MAY BE LOST BY
FAILURE TO ACT PROMPTLY. THIS SUBMISSION WILL BE DEEMED APPROVED
10 BUSINESS DAYS AFTER RECEIPT.”
If the Company reasonably determines that the Site Plan Application conforms to the
Schematic Design Plan approval, the Company shall execute the Site Plan Application as the
owner of the Premises and shall promptly return the signed application to the Purchaser for filing
with the City of Northampton Planning Board. If the Company determines that the Site
Plan/Subdivision Application requires any modification in order to conform to the Schematic
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Design Plan approval, it shall set forth in writing the specific revisions required (the “Site
Plan/Subdivision Review Notice”). The Purchaser shall have thirty (30) days from the receipt of
the Site Plan Review Notice to make any modifications to the Site Plan Application and to return
the revised Site Plan Application to the Company for signature. The Company shall have ten
(10) Business Days from its receipt of the revised Site Plan Application to review the application
for conformance with the Schematic Design Plan approval and resolution of any matters set forth
in the Site Plan Review Notice (“Revised Site Plan Application Review Period”). In the event
that the Company does not respond to Purchaser’s submittal of the revised Site Plan Application
on or before the end of the Revised Site Plan Application Review Period, the Company shall be
deemed to have approved the revised Site Plan Application, provided that, in submitting the
revised Site Plan Application for review and approval, the Purchaser shall have the following
legend prominently at the top of the transmittal letter: “NOTICE PURSUANT TO SECTION
2.6 OF THE LAND DISPOSITION AGREEMENT: IMPORTANT RIGHTS MAY BE
LOST BY FAILURE TO ACT PROMPTLY. THIS SUBMISSION WILL BE DEEMED
APPROVED 10 BUSINESS DAYS AFTER RECEIPT.
If the Company determines that the revised Site Plan Application conforms to the
Schematic Design Plan approval, the Company shall execute the revised Site Plan Application as
the owner of the Premises and shall promptly return the signed application to the Purchaser for
filing with the City of Northampton Planning Board. If the Company reasonably determines that
the revised Site Plan Application does not conform to the Schematic Design Plan approval or
adequately resolve matters set forth in the Site Plan Review Notice, the Company shall set forth,
in writing, the areas of such nonconformance and the Purchaser shall have five (5) Business
Days from the receipt of such notice to modify further the Site Plan Application accordingly and
resubmit such further revised Site Plan Application to the Company for its review. Such review
will occur as set forth herein, until the Company reasonably determines that the Purchaser’s
revised Site Plan Application conforms to the Schematic Design Plan approval and resolves any
matters set forth in the Site Plan Review Notice.
Upon the approval (or deemed approval) of the Site Plan Application by the Company,
the Company shall execute the Site Plan Application as the owner of the Premises and promptly
deliver the same to the Purchaser. The Purchaser shall have five (5) Business Days from its
receipt of the signed Site Plan Application to file such application with the City of Northampton
Planning Board. The Purchaser shall proceed promptly and with all due diligence to obtain
approval of its Site Plan Application by the City of Northampton Planning Board.
Section 2.7 ANR Plan Preparation. Parcel A is presently part of the lot known as
“Lot 13A” of the Village at Hospital Hill as shown on the Plan. Within sixty (60) days following
DHCD’s allocation of LIHTC for the Purchaser Project as set forth in Section 5.7 of this
Agreement, the Purchaser shall, at its sole cost and expense, prepare and submit a plan to the
City of Northampton Planning Board dividing Lot 13A to create three developable lots as shown
on the Parcel A Site Plan attached hereto as Exhibit A: (i) the Premises, (ii) 5.9 Acre Parcel (as
defined in Section 2.8 below) and (iii) 1-acre parcel adjacent to Ford Crossing (the “Ford
Crossing Parcel”), in accordance with Mass. Gen. Laws c. 41, §§81L and 81P (the “ANR Plan”).
The property boundaries on the ANR Plan(s) shall be substantially the same as the property
boundaries shown on the approved Site Plan. Prior to the submission of the ANR Plan to the
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City of Northampton Planning Board, the Residential Developer shall submit the ANR Plan to
the Company for its written approval. The Company shall have ten (10) Business Days to
review the ANR Plan (“ANR Plan Review Period”). The Company shall notify the Residential
Developer, in writing, of any comments to the ANR Plan. The Company shall be commercially
reasonable in its review of the ANR Plan and shall approve the ANR Plan if it is substantially
consistent in all material respects with the approved Site Plan. If the Company fails to notify the
Residential Developer of its approval or disapproval of the ANR Plan prior to the end of the
ANR Plan Review Period, the Company shall be deemed to have approved the ANR Plan. If the
Company notifies the Residential Developer of its disapproval of the ANR Plan setting forth in
specific detail its objections to the ANR Plan, the Residential Developer shall revise the ANR
Plan(s) and resubmit it to the Company for review in the manner prescribed herein. If the
Company approves or is deemed to have approved the ANR Plan, the Residential Developer
shall submit the ANR Plan to the City of Northampton Planning Board for endorsement. The
Company shall arrange for the recording of the ANR Plan with the Hampshire County Registry
of Deeds at the Closing.
In the event that the Company intends to convey either the 5.9 Acre Parcel or the Ford
Crossing Parcel prior to the Closing, then the Company, in its sole discretion, can either (i)
record the ANR Plan with the Hampshire County Registry of Deeds; or (ii) contract with The
Berkshire Group, Inc., at its sole cost and expense, to create separate ANR plans for all three lots
using the boundary information set forth on the ANR Plan, obtain the necessary endorsements of
the City of Northampton Planning Board, and record the ANR plan for the 5.9 Acre Parcel
and/or the Ford Crossing Parcel, as applicable, in order to facilitate their respective conveyances.
Prior to the endorsement of these ANR plans, the Company shall submit these ANR plans to the
Residential Developer for its written approval. The review and approval of these ANR plans
shall follow the procedures set forth in the preceding grammatical paragraph.
Section 2.8 5.9 Acre Parcel Option. Presently, the Company is considering a
proposal for a co-housing development on the 5.9 acre parcel (“Co-Housing Proposal”) adjacent
to the Premises and shown as “5.9 Acre Parcel” on the Site Plan (the “5.9 Acre Parcel”). If the
Co-Housing Proposal is not accepted by the Company, the Purchaser shall have an exclusive
right to propose a residential development for the 5.9 Acre Parcel. On or before November 1,
2017, the Company shall notify the Purchaser of the rejection of the Co-Housing Proposal and
Purchaser’s right to submit a proposal concerning the development of the 5.9 Acre Parcel by the
Purchaser (“Offer Notice”). The Purchaser shall have ninety (90) days from receipt of the Offer
Notice to prepare and submit to the Company a written proposal for the development of the 5.9
Acre Parcel setting forth the proposed development, including purchase price, proposed
financing structure and development schedule and responsive to the Company’s preference for a
predominately market rate residential development. The Company shall have forty-five (45) days
to review and either approve or disapprove such proposal. If the Company approves the
Purchaser’s development proposal, the parties shall enter into a residential land disposition
agreement on substantially similar terms and conditions as this Agreement or, alternatively, the
parties shall amend this Agreement to incorporate the acquisition and development of the 5.9
Acre Parcel into the Purchaser Project.
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If the Company disapproves the proposal, the Company shall provide the Purchaser with
a written explanation setting forth the basis for such disapproval and the Purchaser shall have
sixty (60) days to provide a revised development proposal which the Company shall review
under the timeframe set forth above. If the Purchaser does not provide a revised proposal, the
Company and Purchaser shall have no further rights or obligations to each other concerning the
5.9 Acre Parcel, and the Company may proceed to market the 5.9 Acre Parcel for sale and/or
development.
Section 2.9 Outdoor Recreational Area. The Purchaser intends, as part of the
Purchaser Project, to construct a certain outdoor recreational area on Parcel A for the use and
enjoyment of all of the lot owners and occupants of Village Hill – North Campus. The Purchaser
shall solicit comments and input from the lot owners of Village Hill – North Campus as it
determines the scope and design of such recreational area. At the conveyance of Parcel A to the
Purchaser, the Purchaser shall grant a public access and use easement to the Village Hill North
Landowners’ Association for benefit of the lot owners and occupants of Village Hill – North
Campus and for the purpose of allowing such lot owners and occupants to access and use the
outdoor recreational area for its designated purposes. Such easement shall include access
easement over that portion of Parcel A necessary to reach the recreational area. The outdoor
recreational area shall be considered a “Common Area” under the Declaration. Such easement
shall provide that the maintenance of the outdoor recreational area will be performed by the
Purchaser (or the Purchaser’s agent(s)) and the costs of such maintenance shall be allocated
between the Purchaser and the lot owners of Village Hill – North Campus, as reasonably
determined by the parties. The portion of the maintenance allocated to the lot owners of Village
Hill – North Campus shall be assessed as a Common Expense as such term is defined in the
Declaration and shall be allocated to lot owners per their respective common area percentage
interests.
ARTICLE III
PURCHASE PRICE AND DEPOSIT
Section 3.1 Purchase Price. The purchase price for the Premises shall be One
Million Nine Hundred Thousand Dollars ($1,900,000) (the “Purchase Price”). Subject to
adjustments and apportionments as hereinafter set forth, the Purchase Price shall be paid in full at
the Closing by wire transfer of immediately available federal funds.
Section 3.2 Deposit. No later than the second Business Day following the Effective
Date, the Purchaser shall deposit Eighty Thousand and 00/100 Dollars ($80,000.00)] (together
with all interest accrued thereon, the “Deposit”) with Nolan Sheehan Patten LLP (the “Escrow
Agent”) in accordance with the wiring instructions attached hereto as Exhibit C.
The Deposit shall be held in a segregated, interest bearing account pursuant to Section
3.3; provided, however, that until a signed IRS Form W-9 is received by the Escrow Agent from
the Purchaser, the Deposit will not be placed into an interest bearing account. The Deposit shall
be applied to the Purchase Price if the Closing occurs. In the event that the Closing does not
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occur by the Closing Date, the Deposit shall be disbursed as provided herein. If Purchaser fails
to deliver the Deposit to Escrow Agent within two Business Days, this Agreement shall, at
Seller’s election, terminate. The term “Business Day” shall mean any day of the week other than
Saturday, Sunday, or a federal or state legal holiday.
Section 3.3 Escrow Agent. The Escrow Agent shall be subject to the following terms
and conditions and no others:
(a) Upon receipt of the required W-9 form from the Purchaser, the Escrow
Agent shall place the Deposit in an interest-bearing account. Interest at the rate actually earned
on the Deposit held in the escrow account shall be credited to the party entitled to receive the
Deposit upon delivery of the Deed or upon the return of the Deposit in accordance with the
provisions of this Agreement.
(b) The duties and obligations of the Escrow Agent shall be determined solely
by the express provisions of this Agreement and no other duties or obligations shall be implied
against the Escrow Agent. Further, the Escrow Agent shall be under no obligation to refer to any
other document between or among the Purchaser and the Company related in any way to this
Agreement, unless the Escrow Agent is provided with a copy of such document and consents
thereto in writing.
(c) The Escrow Agent shall not be liable to anyone by reason of any error in
judgment, or for any act done or step taken or omitted by the Escrow Agent in good faith, or for
any mistake of fact or law, or for anything which the Escrow Agent may do or refrain from doing
in connection herewith, unless caused by or arising out of the Escrow Agent’s actual and
intentional misconduct.
(d) The Escrow Agent shall be entitled to rely, and shall be protected in acting
in reliance, upon any writing furnished to the Escrow Agent by either the Purchaser or the
Company and shall be entitled to treat as genuine, and as the document it purports to be, any
letter, paper or other document furnished to the Escrow Agent. In connection with its role as
escrow agent, the Escrow Agent may rely on any affidavit of either the Purchaser or the
Company or any other person as to the existence of any facts stated therein to be known by the
affiant.
(e) In the event the Escrow Agent is notified in writing of any disagreement
between the Purchaser and the Company resulting in adverse claims and demands being made in
connection with or against the funds held in escrow, the Escrow Agent shall be entitled, at the
Escrow Agent’s option, to refuse to comply with the claims or demands of either party until such
disagreement is finally resolved (i) by a court of competent jurisdiction in proceedings which the
Escrow Agent or any other party may initiate, it being understood and agreed by the Purchaser
and the Company that the Escrow Agent has authority, but no obligation, to initiate such
proceedings, or (ii) by an arbitrator in the event that the Purchaser and the Company determine to
submit the dispute to arbitration pursuant to the rules of the American Arbitration Association,
and in so doing the Escrow Agent shall not be or become liable to any party, or (iii) by written
settlement between the Purchaser and the Company.
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(f) The Purchaser and the Company each agree jointly and severally to
indemnify and hold harmless the Escrow Agent against any and all losses, liabilities, costs
(including legal fees) and other expenses in any way incurred by the Escrow Agent in connection
with or as a result of any disagreement between the Purchaser and the Company under this
Agreement or otherwise incurred by the Escrow Agent in any way on account of its role as
escrow.
(g) The Purchaser and the Company acknowledge that the Escrow Agent also
represents the Company in connection with the transactions contemplated by this Agreement.
The Purchaser agrees that in the event of any dispute regarding the Deposit, the Escrow Agent
shall nevertheless be entitled to continue to represent the Company.
(h) Unless superseded by a written, mutual agreement of the parties or by a
final order by a court of competent jurisdiction, the Escrow Agent shall disburse the Deposit in
accordance with the provisions of this Agreement.
(i) The Purchaser and the Seller each certify to the Escrow Agent that it does
not engage in any "internet gambling" business or related activities, which means any activity by
which any bet or wager is placed, received or otherwise knowingly transmitted that involves the
use, at least in part, of the Internet. The Purchase and Seller each further certify to the Escrow
Agent that it will immediately notify the Escrow Agent if there is any change in its business or
activities that would make the foregoing certification untrue.
ARTICLE IV
VILLAGE AT HOSPITAL HILL-NORTH
Section 4.1 Village at Hospital Hill–North. The Company subjected the North
Campus to covenants contained in the Declaration (as defined in Recital B hereto). The
Purchaser acknowledges having received and reviewed with its counsel copies of the
Declaration, By-Laws of Village at Hospital Hill–North Association and related documents.
Section 4.2 Village at Hospital Hill–North Association. The Company created the
Village at Hospital Hill–North Association (“North Campus Association”), an association of the
owners of individual lots comprising the North Campus to maintain Village Hill Road, until
accepted by the City of Northampton, the culverts and detention areas, the easement areas and
drainage facilities, and any shared parking lots and utilities for the North Campus.
Section 4.3 Common Expenses. The Common Expenses budget, attached hereto as
Exhibit D, has been prepared in accordance with standard property management practices and
the Seller believes that such budget represents a materially accurate good faith estimate of what
actual common expenses will be incurred by the North Campus Association for Calendar Year
2017, but the Seller does not guaranty or warrant the accuracy of such projections or
expectations.
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ARTICLE V
PRECONVEYANCE ACTIVITIES
Section 5.1. Title. The Company and the Purchaser acknowledge that a copy of the
Owner’s Policy of Title Insurance issued by Lawyers Title Insurance Corporation to the
Company with respect to the Property dated December 10, 2002 (the “Company Title Policy”)
has been previously furnished by the Company to the Purchaser. Within five (5) Business Days
after the Effective Date, the Purchaser shall cause a title company qualified to do business in the
Commonwealth of Massachusetts (the “Title Company”) to commence with preparing, at the
Purchaser’s expense, a commitment for title insurance in the amount of the Purchase Price (the
“Title Commitment”) to the Purchaser and the Company, together with copies of all instruments
referred to thereon as exceptions to title.
The Purchaser shall have until the date that is thirty days (30) after the Effective Date (the
“Title Objection Date”) to give the Company a written notice (the “Title Objection Notice”) that
sets forth in reasonable detail any objections that the Purchaser has to title matters affecting the
Premises including, without limitation, objections to the Permitted Encumbrances (defined at
Section 5.2) (the “Purchaser Title Objections”); provided, however, that the Purchaser shall have
no right to object to (i) all matters, whether or not of record, that arise out of the actions of the
Purchaser or its agents, representatives or contractors or (ii) all matters that the Title Company is
willing to insure over without additional premium or indemnity and which, in the exercise of the
Purchaser’s reasonable business judgment, do not have a material adverse impact on the
ownership, value or marketability of the Premises.
The Company shall have ten (10) business days from its receipt of the Title Objection
Notice (the “Company’s Title Election Period”) to give the Purchaser notice as to whether the
Company elects to use reasonable efforts to cure the Purchaser Title Objections by the Closing
Date (as defined in Section 6.1). If the Company fails to give the Purchaser written notice of
such election on or before 5:00 pm on the last day of the Company’s Title Election Period, the
Company shall be deemed to have elected not to attempt to cure the Purchaser Title Objections.
If the Company elects or is deemed to have elected not to attempt to cure any one or more of the
Purchaser Title Objections, the Purchaser Title Objections shall constitute Permitted
Encumbrances (defined below) and the Purchaser shall have until the end of the Due Diligence
Period to determine whether to take title to the Premises subject to such matters in accordance
with Section 5.2. or to terminate this Agreement (the “Purchaser’s Title Election Period”). If the
Purchaser elects to terminate this Agreement by giving written notice of such election on or
before 5:00 pm on the last day of the Purchaser’s Title Election Period, then the Deposit shall be
immediately returned to the Purchaser and except for the Purchaser’s Surviving Obligations, the
Purchaser and the Company shall have no further obligations or liabilities under this Agreement.
If the Company elects to use reasonable efforts to cure any one or more of the Purchaser
Title Objections, the Company shall have until the Closing Date to complete such cure, failing
which the Purchaser shall have the option of either accepting the title as it then is or demanding a
refund of the Deposit, which shall immediately be returned to the Purchaser; thereupon, except
for the Purchaser’s Surviving Obligations, the Purchaser and the Company shall have no further
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obligations or liabilities under this Agreement. If the Company elects to use reasonable efforts to
cure any one or more the Purchaser Title Objections, the Company shall use reasonable efforts to
correct such Purchaser Title Objections on or before the Closing Date, except that (y) the
Company shall in no event be required to bring suit to clear any claimed title defects and (z)
except for any voluntary encumbrances, the Company shall not be required to expend more than
a total of Ten Thousand and 00/100 Dollars ($10,000) to cure the Purchaser Title Objections.
Any mortgage or deed of trust granted or assumed by the Company and encumbering the
Premises or any portion thereof will be satisfied by the Company on or prior to the Closing Date
or, if not so satisfied, shall be satisfied at such Closing out of the proceeds otherwise payable to
the Company in accordance with customary conveyancing standards and subject to reasonable
requirements of the Title Company.
Section 5.2 Permitted Encumbrances.
If the Purchaser does not terminate this Agreement pursuant to Section 5.1, the following
matters shall be deemed accepted by the Purchaser and shall be referred to herein as “Permitted
Encumbrances”:
(a) All matters disclosed in the Company Title Policy that are applicable to
the Premises, survey and other title materials, if any, delivered by the Company to the Purchaser
and all matters disclosed in the Title Commitment and to which the Purchaser does not object or
is deemed to have accepted pursuant to Section 5.1;
(b) If the Purchaser fails to obtain the Title Commitment before the end of the
Due Diligence Period, all matters of public record as of the last day of the Due Diligence Period,
other than the Company’s mortgages, if any;
(c) Any liens for municipal assessments or betterments assessed after the
Effective Date;
(d) The provisions of any building, zoning, subdivision and similar laws
applicable to the Premises;
(e) The Company expressly reserves the right of access over the Premises and
shall reserve temporary and permanent easements burdening the Premises to the extent deemed
necessary or appropriate by the Company in connection with the Company Development
Activities, as defined in Section 7.3, carried out by the Company and/or its contractors on other
portions of the Property provided that the exercise by the Company of such right of access shall
not materially interfere with the development of the Premises by the Purchaser for residential
purposes, including the reservation of easements rights for the benefit of the general public over
the pathways to be constructed by the Purchaser in accordance with this Agreement and any Site
Plan Approval from the Planning Board of the City of Northampton and the reservation of
easement rights over the roadway for the Premises for the benefit of the use and development of
the adjacent parcels;
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(f) The Company and the Purchaser agree that the Premises shall be conveyed
by the Company to the Purchaser together with appurtenant easement rights set forth in a
Reciprocal Easement Agreement dated November 25, 2002, recorded on December 10, 2002 in
the Registry at Book 6925, Page 305, as amended, to the extent applicable to and for the benefit
of the Premises;
(g) A restrictive covenant setting forth certain development obligations of the
Purchaser as set forth in Articles VII and VIII below (the “Restrictive Covenant”); and
(h) An amendment to the Declaration, as further described in Section 7.3(e).
At the Closing, title to the Premises shall be conveyed to the Purchaser subject only to the
Permitted Encumbrances.
Section 5.3 Due Diligence Period. The Purchaser shall have one hundred twenty
(120) days from the Effective Date (the “Due Diligence Period”) to physically inspect the
Premises, conduct engineering studies, conduct soil tests, conduct underwriting analyses,
conduct surveys, conduct appraisals and obtain financing, conduct environmental studies,
including any Phase II environmental Premises assessments, soil borings or other invasive tests
on or around the Premises and examine the Premises for the presence of Hazardous Materials, to
determine whether the Premises is threatened from an off Premises source of Hazardous
Materials, and to otherwise conduct such due diligence review of the Premises and all records
and other materials related thereto as the Purchaser, in its absolute discretion, deems appropriate
(hereinafter collectively referred to as the “Inspections”). The Purchaser shall be responsible for
all other costs and expenses associated with the Inspections. In accordance with Section 10.4 of
this Agreement, the Company shall make available the Reports (as defined in Section 10.4)
available for review by the Purchaser. The Purchaser may copy such reports at its sole cost and
expense.
If, between the date of this Agreement and the end of the Due Diligence Period, the
Purchaser shall determine, for any reason in its sole discretion, that the Purchaser Project cannot
be constructed as contemplated by this Agreement or is not financially feasible, then the
Purchaser shall be entitled to terminate this Agreement by giving written notice thereof to the
Company prior to the expiration of the Due Diligence Period, and thereupon the Deposit
promptly shall be returned to the Purchaser and, except for the Purchaser’s Surviving
Obligations, the Company and the Purchaser shall have no further obligations or liabilities to
each other hereunder. If the Purchaser fails to give such notice on or before 5:00 p.m. on the last
day of the Due Diligence Period, it shall conclusively be deemed to have elected to waive its
right to terminate this Agreement under this Section 5.3 and shall be obligated to purchase the
Premises in accordance with the terms hereof.
The term “Hazardous Materials” shall mean any substance which is or contains: (i) any
“hazardous substance” as now or hereafter defined in the Comprehensive Environmental
Response, Compensation, and Liability Act of 1980, as amended (42 U.S.C. §9601 et seq.) or
any regulations promulgated thereunder; (ii) any “hazardous waste” as now or hereafter defined
in the Resource Conservation and Recovery Act (42 U.S.C. § 6901 et seq.) or regulations
promulgated thereunder; (iii) any substance regulated by the Toxic Substances Control Act (15
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U.S.C. § 2601 et seq.); (iv) gasoline, diesel fuel or other petroleum hydrocarbons; (v) asbestos
and asbestos containing materials, in any form, whether friable or nonfriable; (vi)
polychlorinated biphenyls; (vii) radon gas; and (viii) any additional substances or materials
which are now or hereafter classified or considered to be hazardous or toxic under any laws,
ordinances, statues, codes, rules, regulations, agreements, judgments, orders and decrees now or
hereafter enacted, promulgated, or amended, of the United States, the states, the counties, the
cities or any other political subdivisions in which the Premises is located and any other political
subdivision, agency or instrumentality exercising jurisdiction over the owner of the Premises, the
Premises or the use of the Premises relating to pollution, the protection or regulation of human
health, natural resources or the environment, or the emission, discharge, release or threatened
release of pollutants, contaminants, chemicals or industrial, toxic or hazardous substances or
waste into the environment (including ambient air, surface water, ground water or land or soil).
Section 5.4 Access. During the Due Diligence Period, the Purchaser, personally or
through its authorized agent or representative, shall be entitled upon reasonable advance notice to
the Company to enter upon the Premises during normal business hours and shall have the right,
at its sole cost and expense, to make the Inspections, as the Purchaser deems necessary or
advisable, subject to the following limitations: (a) such access shall not violate any law or
agreement to which the Company is a party or otherwise expose the Company to a material risk
of liability; (b) the Purchaser shall give the Company written notice at least two (2) Business
Days before conducting any inspections of the Premises, and a representative of the Company
shall have the right, but not the obligation, to be present when the Purchaser or its representatives
conducts its or their investigations on the Premises. Such notice may be given by electronic
mail. Such notice must be given to Beth Murphy, MassDevelopment, 1350 Main Street, Suite
1110, Springfield, MA 01103, emurphy@massdevelopment.com; (c) neither the Purchaser nor
its agents shall damage the Premises or any portion thereof; (d) unless the Company agrees
otherwise, before the Purchaser or its agents enter onto the Premises, the Purchaser (or its agents)
shall deliver to the Company a certificate of insurance naming the Company and the Company’s
members, Massachusetts Development Finance Agency and The Community Builders, Inc., as
additional insureds, evidencing (i) commercial general liability, including personal injury, death
and property damage and if applicable, product liability/completed operations coverage in the
minimum amount of $1,000,000 per occurrence and $2,000,000 in the aggregate; (ii) automobile
liability coverage for owned, hired and non-owned vehicles in the minimum amount of
$1,000,000 per occurrence combined single limit; (iii) workers’ compensation for all its
employees in the statutorily required amounts, with employers liability of $500,000.00 or more;
(iv) umbrella liability having limits of $1,000,000 per occurrence and $1,000,000 aggregate; and,
prior to any invasive environmental testing, (v) pollution liability insurance in the minimum
amount of $1,000,000 per occurrence and $2,000,000 in the aggregate, issued by an insurance
company qualified to do business in the Commonwealth of Massachusetts and having a rating of
at least “A-VIII” by A.M. Best Company; (e) the Purchaser shall restore the Premises to
substantially the same condition it was in prior to the exercise by the Purchaser of its access and
inspection rights granted under this Article IV, including the removal of all materials,
groundwater monitoring wells, if permitted as set forth herein, equipment and machinery and all
other items brought onto the Premises by the Purchaser and/or its agents or contractors; (f) the
Purchaser shall not install any groundwater monitoring wells on the Premises without the
Company’s prior written approval; (g) the Purchaser shall provide immediate notification to the
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Company of potential contamination discovered by geotechnical or environmental investigation;
(h) the Purchaser shall be solely responsible for all costs and expenses associated with the
exercise of the rights granted under this Section 5.4, including any costs associated with
obtaining any permits, licenses or similar approvals necessary to undertake and/or complete its
Inspections; (i) the Purchaser shall use reasonable efforts to perform all on-site due diligence
reviews in an expeditious and efficient basis; and (j) the Purchaser, to the fullest extent permitted
by law, shall indemnify, hold harmless and defend the Company and the Company’s members,
and their respective agents, officers, members, directors, trustees, advisors, managers and
employees (the “Company Parties”) against, and hold the Company Parties harmless from, all
loss, liability, claims, costs (including reasonable attorneys’ fees), liens and damages resulting
from or relating to the activities of the Purchaser or its agents or contractors under this Article
IV. The foregoing indemnification obligation shall survive the Closing or termination of this
Agreement.
Section 5.5 Confidentiality. The Purchaser shall hold all information concerning the
Premises and the Company, excluding information that is available to the general public from
sources other than disclosure by the Purchaser or its agents in violation of this Agreement
(“Confidential Information”), in confidence and shall not at any time disclose or permit the
disclosure of the Confidential Information to any person or entity without the Company’s prior
written consent. The Purchaser further agrees to use the Confidential Information only for
purposes of evaluating the Premises in connection with its purchase thereof in accordance with
the terms of this Agreement. Notwithstanding the foregoing, (i) the Purchaser may disclose the
Confidential Information to its legal counsel, accountants, lenders and similar third parties that
need to review the Confidential Information in connection with the Purchaser’s purchase of the
Premises in accordance with the terms of this Agreement, and (ii) the Purchaser may disclose the
Confidential Information to the extent that such disclosure is required by law or court order,
provided that the Purchaser first shall provide written notice thereof to the Company. If this
Agreement is terminated before the Closing, the Purchaser promptly shall return the Confidential
Information to the Company and shall not retain copies thereof. At the Company’s request, the
Purchaser shall provide the Company with complete copies of all third party engineering and
environmental reports obtained by the Purchaser in connection with the Premises at no cost to
the Company.
Neither the Company nor the Purchaser shall make any public announcements or issue
any press releases or other publicity concerning the intended development or sale of the Premises
pursuant to this Agreement without first obtaining the prior written consent of the other. All
proposed public announcements, press releases or other publicity materials prepared by or
produced for the Purchaser shall be sent to Elizabeth Murphy at
emurphy@massdevelopment.com and Kelsey Abbruzzese at
kabbruzzese@massdevelopment.com. All proposed public announcements, press releases or
other publicity materials prepared by or produced for the Company shall be sent to Eliza
Edelsberg Datta at edatta@tcbinc.org and Rachana Crowley at rcrowley@tcbinc.org. Within five
(5) business days following the receipt of such materials, the Company or the Purchaser, as
applicable, shall approve or disapprove such materials and shall provide a detailed written
explanation of any disapproval. Following the receipt of any disapproval, the Purchaser or the
Company, as applicable, shall make the necessary revisions to the proposed publicity materials
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and shall resubmit to the other party for review and approval. No publicity materials shall be
published or circulated to the general public, media or any individuals without the prior approval
of the other party. Subject to the foregoing, the Purchaser shall have the right to freely use, share
and distribute any plans for, photographs of or information concerning the buildings, structures
and improvements built or to be built by the Purchaser on the Premises, it being the intent of the
Purchaser to reserve all copyrights and other intellectual property connected therewith. The
provisions of this paragraph shall survive the Closing or termination of this Agreement.
Section 5.6 Reporting. In the event that the Purchaser’s due diligence reveals any
condition of the Premises that in the Purchaser’s judgment requires disclosure to any
governmental agency or authority, the Purchaser shall immediately notify the Company thereof.
In such event, the Company, and not the Purchaser or anyone acting on the Purchaser’s behalf,
shall make such disclosures as the Company deems appropriate. Notwithstanding the foregoing,
the Purchaser may disclose matters concerning the Premises to a governmental authority if, (a) in
the written opinion of the Purchaser’s outside legal counsel, the Purchaser is required by law to
make such disclosure, and (b) the Purchaser gives the Company not less than ten (10) days prior
written notice of the proposed disclosure, together with a copy of such legal opinion, except in
the case of an Imminent Hazard, as defined by 310 CMR §40.0321, wherein the Purchaser’s LSP
determines that two hour notification of the Department of Environmental Protection is required
pursuant to applicable law in which case the Purchaser shall be required to notify the Company,
by telephone, prior to such disclosure.
Section 5.7 Contingencies.
(a) Financing Contingency. It is a condition to the Purchaser’s obligation to
purchase the Premises that the Purchaser is able to obtain the necessary combination of Low
Income Housing Tax Credit (“LIHTC”) awards and/or any supplemental funding through the
Department of Housing and Community Development (“DHCD”) (“Equity Financing”) and
construction and permanent debt financing, including financing through the MassHousing
Workforce Housing program (“Debt Financing”) commitments for the construction of the
Purchaser Project and the leasing of the Premises. Purchaser covenants to use good faith efforts
to secure the following Equity Financing and Debt Financing:
(i) Equity Financing. If required by the Massachusetts Department of Housing
and Community Development (“DHCD”) under the applicable qualified
allocation plan (“QAP”), the Purchaser shall submit a pre-application for a
LIHTC allocation to DHCD on or before December 15, 2017 or such date as
specified in the QAP. If DHCD approves such pre-application, or if such
pre-application is not required by DHCD, then the Purchaser shall file a One
Stop Housing Application for the Purchaser Project with the Massachusetts
Department of Housing and Community Development (“DHCD”) on or
before February 1, 2018, or by such other date that DHCD may set for the
2018 rental round for applications requesting an allocation of 9% LIHTC for
the Purchaser Project (“First Round”). The First Round One Stop
Application shall also include a request for DHCD soft money funding,
including but not limited to Affordable Housing Trust Funds (“Additional
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Funds Request”). It is anticipated that DHCD will announce its First Round
LIHTC awards during the third calendar quarter of 2018. In the event DHCD
does not approve the pre-application of the Purchaser or the Purchaser fails to
receive an award from DHCD, consistent with its request under the One Stop
Housing Application, as a result of this First Round, the Purchaser shall be
required to submit another pre-application, if applicable, and/or another One
Stop Housing Application with DHCD prior to the deadline for the next
round of LIHTC application submittals (“Second Round”). The Second
Round One Stop Housing Application shall include all of the information
required for the First Round One Stop Housing Application, including,
without limitation, the Additional Funds Request. The Purchaser shall
provide an electronic copy of the First Round and Second Round One Stop
Application and Additional Funds Request to the Company within five (5)
days prior to submittal to DHCD for the applicable Round to allow for the
Company’s review and comment. An electronic copy shall be sent to the
attention of Elizabeth Murphy at emurphy@massdevelopment.com, Richard
Henderson at rhenderson@massdevelopment.com and Victoria Maguire at
vmaguire@massdevelopment.com.
Notwithstanding any other provisions hereof, in the event Purchaser fails to
receive an award from DHCD, consistent with its request under the pre-
application or the Second Round One Stop Housing Application and
including the approval of the Additional Funds Request to the extent
necessary to finance the Purchaser Project, on or before December 31, 2019,
this Agreement shall terminate on December 31, 2019, unless the Purchaser
provides written notice to the Company prior to December 31, 2019 of its
desire to submit another pre-application, if applicable, and another One Stop
Housing Application to DHCD prior to the deadline for the next round of
LIHTC application submittals (the “Third Round”). In such event, the
Purchaser shall schedule a meeting with the Company to review and discuss
any information provided to the Purchaser by DHCD concerning the
Purchaser’s Second Round pre-application and/or One Stop Housing
Application and any required or suggested amendments to the Second Round
pre-application or One Stop Housing Application. Thereafter, but no later
than thirty (30) days prior to the submission of the Third Round One Stop
Housing Application and Additional Funds Request, the Purchaser shall
submit such application to the Company for its review and approval. The
Company shall have ten (10) business days to review the Third Round One
Stop Housing Application (the “Third Round Application Review Period”)
and, provided that, such application is consistent with the prior discussions
between the Purchaser and the Company and is responsive to any comments
or directives of DHCD, the Company shall approve such application. If the
Company disapproves the Third Round One Stop Housing Application, the
parties shall meet no later than five (5) business days after the Purchaser’s
receipt of the Company’s notice of disapproval to discuss and resolve the
issues set forth in such notice of disapproval. If the Company fails to provide
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written notice of such approval by the end of the Third Round Application
Review Period, such application will be deemed approved, provided that, in
submitting the Third Round One Stop Housing Application for review and
approval, the Purchaser shall have the following legend prominently at the
top of the transmittal letter: “NOTICE PURSUANT TO SECTION
5.7(a)(i) OF THE LAND DISPOSITION AGREEMENT: IMPORTANT
RIGHTS MAY BE LOST BY FAILURE TO ACT PROMPTLY. THIS
SUBMISSION SHALL BE DEEMED APPROVED 10 BUSINESS
DAYS AFTER RECEIPT. Upon written notice of such approval (or upon
deemed approval), $50,000 of the Deposit held by the Escrow Agent in
accordance with Section 3.3 of this Agreement, shall become non-refundable
and shall be retained by the Company regardless of whether the Premises is
sold to the Purchaser per the terms of this Agreement.
Notwithstanding any other provisions hereof, in the event Purchaser fails to
receive an award from DHCD, consistent with its request under the Third
Round One Stop Housing Application and including the approval of the
Additional Funds Request to the extent necessary to finance the Purchaser
Project, on or before December 31, 2020, this Agreement shall terminate on
December 31, 2020, without any further action required of the parties
hereunder, and except for any obligations of either party which survive such
termination as specified herein, the Company and the Purchaser shall have no
further obligations or liabilities to each other hereunder,
The Company shall provide a letter of support for the Purchaser’s One Stop
Application, if requested by the Purchaser.
Within five (5) business days of the submission of any One Stop Housing
Application to DHCD, the Purchaser shall provide an electronic copy of such
application to the Company. An electronic copy shall be sent to the attention
of Elizabeth Murphy at emurphy@massdevelopment.com, Richard
Henderson at rhenderson@massdevelopment.com and Victoria Maguire at
vmaguire@massdevelopment.com.
(ii) Debt Financing. The Purchaser shall use its good faith efforts to obtain
construction and permanent financing on commercially reasonable terms and
conditions from recognized commercial lending institutions or public
financing providers in such amounts which, when combined with the Equity
Financing, is reasonably sufficient to ensure the economic feasibility of the
Project. The Purchaser shall apply for such Debt Financing at or around the
same time it submits its One Stop Application for the First Round and, if
applicable or necessary, the Second Round and the Third Round. In the
event the Purchaser obtains Equity Financing, but is unable to obtain a
binding commitment for its required Debt Financing by the earlier of (i) the
date that is 180 days from the date of DHCD’s letter of conditional allocation
of LIHTC or (ii) December 31, 2019 (or if a Third Round One Stop
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Application is submitted, December 31, 2020), then this Agreement shall
terminate on the earlier of the dates in (i) and (ii) without any further action
required of the parties hereunder. Except for any obligations of either party
which survive such termination as specified herein, the Company and the
Purchaser shall have no further obligations or liabilities to each other
hereunder. The Company shall provide a letter of support for the Purchaser’s
debt financing application(s), if requested by the Purchaser.
(b) Permitting Contingency. It is a condition to the Purchaser’s obligation to
purchase the Premises that the Purchaser obtains all necessary federal, state and local permits
(excluding a building permit) and approvals (the “Permits”), including without limitation permits
and approvals from the City for the construction of the Purchaser Project provided Purchaser
promptly applies for and diligently pursues the Permits. Provided the Company does not incur
any additional engineering or legal costs or expenses, the Company shall use reasonable efforts
to cooperate with the Purchaser in the Purchaser’s efforts to obtain Permits, including Site Plan
Approval, by signing any necessary applications that require the Purchaser’s signature in order to
be submitted properly and participating in meetings with the City’s Planning Department or
Planning Board, if necessary. The Purchaser shall have ninety (90) days from the approval or
conditional approval of the Schematic Design Plans by the Company (pursuant to Section 8.3)
(the “Permitting Contingency Period”) to obtain the Permits. The Company and the Purchaser
agree that the Purchaser shall not be deemed to have obtained the Permits until the expiration of
all appeal periods with respect to the Permits where no appeals have been taken with respect to
the Permits or upon a final judgment by a court of competent jurisdiction on any appeal of any
decision. If the Purchaser is unable to obtain the Permits prior to the end of the Permitting
Contingency Period and the Purchaser had promptly applied for and diligently pursued the
Permits, then the Purchaser shall be entitled to either (i) request an extension of the Permitting
Contingency Period to the extent that such extension is necessary due to the scheduling of any
hearing by the City’ Planning Board or the expiration of any appeal period, or the conclusion of
any appeal filed by any abutter to the Premises by giving written notice thereof to the Company
prior to the expiration of the Permitting Contingency Period, or (ii) terminate this Agreement by
giving written notice thereof to the Company prior to 5:00 p.m. on the last day of the Permitting
Contingency Period. Upon a request for extension, the Company shall grant an extension for a
period of time sufficient for the holding of the City’s Planning Board hearing and the running of
any appeal period for any decision therefrom or for any appeal period not yet concluded or for a
final judgment by a court of competent jurisdiction on any appeal of any decision therefrom.
Upon notice of termination, the Deposit promptly shall be returned to the Purchaser and, except
for the Purchaser’s Surviving Obligations, the parties shall have no further obligations or
liabilities to each other hereunder. If the Purchaser fails to give notice prior to 5:00 p.m. on the
last day of the Permitting Contingency Period, it shall exclusively be deemed to have elected to
waive its right to terminate this Agreement under this Section 5.7 and shall be obligated to
purchase the Premises in accordance with this Agreement.
Section 5.8 Preconveyance Conditions. Prior to the Closing Date and the
commencement of the construction of the Purchaser Project, the fulfillment of the conditions set
forth in this Section 5.8 are required unless waived in whole or in part by written mutual
agreement of the Company and the Purchaser: (“Preconveyance Conditions”):
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(a) the Purchaser must prepare and the Company must review and approve the
Construction Documents for the Purchaser Project pursuant to Article VIII;
(b) the Purchaser shall obtain the necessary Site Plan Approval from the City of
Northampton Planning Board for the construction of the Purchaser Project pursuant to Section
2.6 hereof, including Subdivision Plans endorsed by the City of Northampton;
(c) issuance of initial building permits to the extent required by the Purchaser’s lenders
and, provided that, the Purchaser diligently applies for and pursues the issuance of such initial
building permits.
Upon the occurrence (or waiver) of the Preconveyance Conditions set forth herein, the
Company shall convey the Premises to the Purchaser, for the construction and development of
the Purchaser Project, in accordance with all of the provisions of Article VI below.
ARTICLE VI
CONVEYANCE OF THE PREMISES
Section 6.1 Closing Date. The closing (the “Closing”) shall take place at 10:00 a.m.
on the date that is up to twenty (20) days after the satisfaction (or waiver) of the Preconveyance
Conditions, but in no event later than December 31, 2020 (“Closing Date”). The parties, by
mutual agreement, may accelerate the Closing Date to an earlier date even though all of the
Preconveyance Conditions have not been satisfied. The Company shall convey the Premises to
the Purchaser on the Closing Date (the “Conveyance”).
Section 6.2 The Company’s Deliveries. At the Closing, the Company shall deliver or
cause to be delivered to the Purchaser, at the Company’s sole expense, each of the following
items, each executed and acknowledged to the extent appropriate:
(a) The Release Deed (the “Deed”) substantially in the form attached hereto as
Exhibit E, subject to the Permitted Encumbrances;
(b) A non-foreign person affidavit sworn to by the Company as required by Section
1445 of the Code;
(c) A certificate updating the Company Representations substantially in the form of
Exhibit F-1;
(d) Such evidence or documents as may be reasonably required by the Title Company
relating to: (i) mechanics’ or materialmen’s liens; (ii) parties in possession; and (iii) the status
and capacity of the Company and the authority of the Person or Persons who are executing the
various documents on behalf of the Company in connection with the sale of the applicable
portion of the Premises;
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(e) Any easement agreement(s) or license agreement(s) required by this Agreement;
(f) Certificate(s) from Village at Hospital Hill—North Association that all common
expenses are paid through the Closing Date for the Premises;
(g) A duly-executed Closing Statement; and
(h) Such documents as may be reasonably required by the Purchaser’s Lender.
Section 6.3 The Purchaser’s Deliveries. At the Closing, the Purchaser shall deliver
to the Company the following items:
(a) Immediately available federal funds sufficient to pay that portion of the Purchase
Price required to be paid at the Closing pursuant to Section 3.1 (less the Deposit, and subject to
apportionments and adjustments as set forth herein) and the Purchaser’s share of all escrow costs
and closing expenses;
(b) Duly executed and acknowledged originals of the Closing Statement;
(c) A certificate updating the Purchaser Representations substantially in the form of
Exhibit _F-2; and
(d) Such evidence or documents as may reasonably be required by the Title Company
evidencing the status and capacity of the Purchaser and the authority of the Person or Persons
who are executing the various documents on behalf of the Purchaser in connection with the
purchase of the applicable portion of the Premises.
Section 6.4 Costs and Prorations.
(a) General. Subject to Section 6.4(b), real estate taxes, if any, and assessments
allocable to the payment period that includes the Closing Date with respect to the applicable
portion of the Premises shall be prorated between the Company and the Purchaser as of the
Closing Date in accordance with this Section 6.4. All such items attributable to the period prior
to the Closing Date shall be credited or charged to the Company, and all such items attributable
to the period commencing on the Closing Date shall be credited or charged to the Purchaser.
(b) Taxes and Common Expenses. There shall be no adjustment for real estate taxes
as the Company’s real property is currently exempt from real estate taxes, given that its members
are a public instrumentality of the Commonwealth of Massachusetts, duly established and
existing by virtue of Mass. Gen. Laws C. 23G, and a 501(c)(3) corporation, but there shall be an
adjustment for the portion of the stormwater assessment tax imposed by the City of Northampton
and attributable to the Premises. The North Campus Association’s common expenses for the
Premises for the then current month attributable to the applicable portion of the Premises, as of
the Closing Date, and the net amount thereof shall be added to or deducted from, as the case may
be, the purchase price payable by the Purchaser at the Closing. The Company shall be obligated
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to pay any regular monthly North Campus Association common expenses for the applicable
portion of the Premises due from the date of the creation of the North Campus Association but
not including date of the Closing.
(c) Initial Capital Account Payment. At the time of the delivery of the Deed, the
Purchaser shall pay Five Hundred and 00/100 Dollars ($500.00) per lot as an initial capital
account payment. The Purchaser acknowledges that the purpose of this deposit is to provide
working capital to the North Campus Association and such deposit is not a prepayment of any
common expenses charges from the Purchaser to the North Campus Association.
(d) Closing Statement. The Purchaser and the Company shall cooperate to produce
prior to the Closing Date a schedule of prorations and closing costs that is as complete and
accurate as reasonably possible (the “Closing Statement”). All adjustments to any estimated
prorations shall be made by the parties with due diligence and cooperation within sixty (60) days
following the Closing by prompt cash payment to the party yielding a net credit from such
prorations from the other party.
(e) Closing Costs. The Purchaser and the Company shall each pay their own legal
fees related to the preparation of this Agreement and all documents required to settle the
transaction contemplated hereby. The Purchaser shall pay (i) all costs associated with its due
diligence, including the cost of appraisals, architectural, engineering, credit and environmental
reports, (ii) all title insurance premiums and charges and all title examination costs, (iii) all
survey costs, (iv) all environmental assessment costs, and (v) all permitting costs. All other
customary purchase and sale closing costs shall be paid by the Company or the Purchaser in
accordance with the custom in the jurisdiction where the Premises is located.
Section 6.5 Possession. Possession of the Premises shall be delivered to the Purchaser
by the Company at the Closing, subject only to the Permitted Encumbrances.
Section 6.6 Commissions. The Company and the Purchaser represent and warrant to
each other that no brokerage fee or real estate commission is or shall be due or owing in
connection with the sale of Parcel A, and the Company and the Purchaser hereby agree to
indemnify and hold the other harmless from any and all claims of any broker or agent based on
action or alleged action of the other. As to Parcel B, if and when, but only if and when, the
Closing is completed and the Purchase Price is paid in full, the Company shall be obligated to
pay a real estate commission and/or brokerage fee to Colebrook Realty Services (the
“Company’s Broker”) in accordance with a separate agreement between the Company and the
Company’s Broker. The Company’s Broker shall indemnify the Company and the Purchaser
against all claims, costs and liability relating to any broker or other Person claiming by, through
or under the Company’s Broker. Such commissions shall be paid in full at Closing. By
execution of this Agreement, the Company’s Broker agrees to the foregoing matters. The
Company and the Purchaser represent and warrant to each other that no other brokerage fee or
real estate commission is or shall be due or owing in connection with this transaction, and the
Company and the Purchaser hereby indemnify and hold the other harmless from any and all
claims of any other broker or agent based on action or alleged action of the other. The
provisions of this paragraph shall survive the Closing.
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ARTICLE VII
CONSTRUCTION OF PURCHASER PROJECT
Section 7.1 Development Requirements.
(a) Development Requirements. The Company and the Purchaser acknowledge and
agree that the LDA, the Declaration, the Design Documents, the Master Plan and this Agreement
set forth a number of obligations, requirements, restrictions and other terms and conditions that
are applicable to the development of the Property, including without limitation the residential
development of the Premises (collectively, the “Development Requirements”). The Purchaser
acknowledges and agrees that it is familiar with all of the Development Requirements and that it
shall perform all of the Development Requirements that are applicable to the Premises and shall
comply fully and completely with all of the Development Requirements. Furthermore, the
Purchaser acknowledges and agrees that its covenants and agreements with respect to the
construction of the Purchaser Project on the Premises as contained in this Agreement shall
survive the Closing. Certain development obligations and restrictions shall be imposed on the
Premises as restrictive covenants running with the land and binding upon the Purchaser’s
permitted successors in title to the Premises.
Section 7.2 Duty of Purchaser to Construct. The Purchaser Project shall be
constructed by or caused to be constructed by the Purchaser in accordance with the Development
Requirements, the Master Schedule and Section 7.5 hereof and all other applicable requirements,
including the HERS rating requirement set forth in this Section. The Purchaser shall be solely
responsible for awarding and administering all construction contracts for the construction of the
Purchaser Project and the Company shall have no obligation to award or administer any such
construction contract or any liability thereunder. The Company shall not be responsible for
making any payments to any contractor, subcontractor, agent, consultant, employees or suppliers
of the Purchaser. Nothing in this Agreement shall alter, in any respect, any of the requirements
contained in any related governmental approvals with respect to the construction of the
Purchaser Project, and the Purchaser shall observe the requirements of such governmental
approvals with respect to the construction of the Purchaser Project. The Purchaser shall perform
or cause the performance of all of its obligations hereunder and shall conduct all operations with
respect to the construction of Purchaser Project in a good, workmanlike and commercially
reasonable manner, with the standard of diligence and care normally employed by a duly
qualified person in the performance of comparable work and in accordance with generally
accepted practices appropriate to the activities undertaken. The Purchaser shall employ at all
times adequate staff or consultants with the requisite experience necessary to administer and
coordinate all work related to the design, engineering, acquisition, construction, installation and
development of the Purchaser Project.
Purchaser shall design and construct the Purchaser Project to satisfy the sustainable
design provisions set forth in the applicable QAP of DHCD. Moreover, Purchaser shall use good
faith efforts to exceed such sustainable design requirements in its design and construction of the
Purchaser Project, with a goal to achieve a HERS rating of under 50.
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Section 7.3 Development Consistent with Master Plan; Provision of Information.
(a) The Purchaser acknowledges and agrees that the development of the Premises
shall be carried out in accordance with and in compliance with the Master Plan as it concerns the
location of walkways and pathways and the retention and protection of certain specimen trees, as
such Master Plan may be amended in accordance with its terms, and in a manner that is
consistent in all respects with the development of the Property by the Company (the “Company
Development Activities”). The Purchaser, in connection with the development of the Premises,
shall not take any action or omit to take any action that would be inconsistent with, adversely
affect or otherwise conflict with any local, state or federal licenses, permits, approvals or other
governmental authorizations now in existence or hereafter acquired either by the Company in
connection with the Company Development Activities (the “Company Approvals”) or by the
Purchaser in connection with the development of the Premises and in connection with the
satisfaction of the Development Requirements, including without limitation the Certificate of the
Secretary of the Executive Office of Environmental Affairs for the Commonwealth of
Massachusetts issued as the final record of decision with respect to the redevelopment of the
Property on June 14, 1996 pursuant to the Massachusetts Environmental Policy Act (“MEPA”)
and the regulations promulgated thereunder at 301 CMR 11.00 et seq., together with all other
decisions, certificates and determinations issued by the Secretary pursuant to the MEPA process
with respect to the Property now or hereafter in effect with respect to the redevelopment of the
Property and all other applicable local, state and federal laws, statutes, ordinances, codes and
regulations of any governmental authority with jurisdiction over the Property and/or the
redevelopment of the Property that may be applicable to the redevelopment of the Premises now
or hereafter.
(b) The Purchaser shall provide to the Agency, as Manager of the Company,
copies of all applications or other submissions seeking any governmental approvals with respect
to the development of the Premises for residential purposes at least ten (10) business days prior
to the filing of any such applications or other submissions with any governmental authority in
order to allow sufficient time for the Agency to review and comment on such applications and
submissions. The Purchaser shall provide to the Agency, as Manager of the Company, copies of
all governmental approvals obtained by or issued to the Purchaser and relating in any manner
whatsoever to the development of the Premises.
(c) Neither the Purchaser nor the Company shall oppose or take any action in
opposition to or omit to take any action where the effect of which is adverse to an application or
other submission made by the other party in connection with any attempt by such party to obtain
any necessary governmental approvals for such party’s intended development activities on the
Premises or the Property, as applicable, and provided that all of such governmental approvals
and proposed development activities are consistent in all material respects, with the Master Plan
and the LDA, and, in the case of the Purchaser, any approvals of the Company.
(d) The Purchaser hereby acknowledges that during the construction of the
Purchaser Project, other residential and commercial developers who have entered (or will enter)
into contracts with the Company for the development of other portions of the Property (“Other
Developers”) shall use portions of the Property as part of such development and Purchaser
hereby agrees to cooperate and coordinate with such Other Developers as reasonably requested
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by the Company. The Purchaser shall not oppose nor take any action in opposition to nor omit to
take any action where the effect of which is adverse to an application or other submission made
by Other Developers in connection with any attempt by Other Developers to obtain any
necessary governmental or regulatory approvals for the development of such portions of the
Property provided that such development is consistent with the Master Plan, the LDA and the
Other Developers’ agreements with the Company.
(e) In accordance with Article VI of the Declaration, the Company intends to
amend the Declaration to amend Exhibit A-1 “Projected Total Number of Units Based upon
Master Plan” set forth any necessary adjustment in the Projected Total Number of Units and the
associated percentage interest due to the number of Units to be constructed by the Purchaser no
later than the Closing Date. The Premises is conveyed subject to the Declaration and any
amendments thereof. The Purchaser acknowledges that pursuant to Article VI of the
Declaration, the Company, as Grantor, has full power and authority to amend and revise any
provision of the Declaration to accommodate the future phases of the development of the Village
at Hospital Hill project. The Purchaser shall have the opportunity to review and comment on
such amendments prior to their recording and shall not object to such amendments provided that
such amendments do not materially impair the marketability and resale of the Premises or create
excessive burdens on the Purchaser’s use and ownership of the Premises.
Section 7.4 Indemnification; Remedies of Hospital Hill Development LLC.
(a) The Purchaser, regardless of any agreement to maintain insurance, will
indemnify and defend the Company, and its members, managers, officers, directors, employees
and agents and the officers, directors, employees and agents of its members and managers (the
“Company Indemnitees”) and hold the Company Indemnitees harmless from and against (A) any
and all claims to the extent arising out of (i) the design, engineering and construction of the
Purchaser Project by the Purchaser or any of its consultants, engineers, advisors, contractors,
subcontractors or suppliers; (ii) the Purchaser’s nonpayment under any contract between the
Purchaser and its consultants, engineers, advisors, contractors, subcontractors and suppliers, or
any claims of persons employed by the Purchaser or its agents to construct the Purchaser Project;
(iii) any accident, injury or damage to any person occurring in or about the Premises or as a
result of the Purchaser Project; and (iv) any breach by the Purchaser of its obligations under this
Agreement, and (B) all costs, counsel fees, expenses or liabilities reasonably incurred in
connection with any such claim or any action or proceeding brought thereon. In case any action
or proceeding is brought against the Company Indemnitees, by reason of any such claim, the
Purchaser will defend the same at its expense upon notice from any Indemnity, and the Company
Indemnitees will cooperate with the Purchaser, at the expense of the Purchaser, in connection
therewith. This indemnification shall survive the termination of this Agreement and the Closing.
(b) The Company, regardless of any agreement to maintain insurance, will
indemnify and defend the Purchaser, and its members, managers, officers, directors, employees
and agents and the officers, directors, employees and agents of its members and managers (the
“Purchaser Indemnitees”) and hold the Purchaser Indemnitees harmless from and against (A) any
and all claims to the extent arising out of (i) the Company’s Development Activities; (ii) any
accident, injury or damage to any person occurring in or about the Premises as a result of the
Company Development Activities; and (iii) any breach by the Company of its obligations under
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this Agreement, and (B) all costs, counsel fees, expenses or liabilities reasonably incurred in
connection with any such claim or any action or proceeding brought thereon. In case any action
or proceeding is brought against the Purchaser Indemnitees, by reason of any such claim, the
Company will defend the same at its expense upon notice from any Indemnity, and the Purchaser
Indemnitees will cooperate with the Company, at the expense of the Company, in connection
therewith. This indemnification shall survive the termination of this Agreement and the Closing.
(c) Notwithstanding any contrary provision in this Agreement, the Company shall
have the right to take any action not prohibited by law or make any decision not prohibited by
law with respect to proceedings for indemnity against the liability of the Company Indemnitees.
The Company may enforce its rights under this Agreement by legal proceedings for the specific
performance of any obligation contained herein or for the enforcement of any other legal or
equitable remedy, and may recover damages caused by any breach by the Purchaser of its
obligations to the Company or any Company Indemnitees under this Agreement, including,
without limitation, court costs, reasonable attorney’s fees and other costs and expenses incurred
in enforcing such obligations.
(d) Notwithstanding any contrary provision in this Agreement, the Purchaser shall
have the right to take any action not prohibited by law or make any decision not prohibited by
law with respect to proceedings for indemnity against the liability of the Purchaser Indemnitees.
The Purchaser may enforce its rights under this Agreement by legal proceedings for the specific
performance of any obligation contained herein or for the enforcement of any other legal or
equitable remedy, and may recover damages caused by any breach by the Company of its
obligations to the Purchaser or any Purchaser Indemnitees under this Agreement, including,
without limitation, court costs, reasonable attorney’s fees and other costs and expenses incurred
in enforcing such obligations.
Section 7.5 Time for Completion.
(a) The Purchaser represents that it expects to complete the Purchaser Project
on or before the Completion Date. In the event that the Purchaser fails to complete the Purchaser
Project by the Completion Date, but construction is in progress and the Company reasonably
determines that construction is proceeding expeditiously towards issuance of temporary
certificates of occupancy for the remaining Units on or before the date that is twelve calendar
months after the Completion Date and that the Purchaser has proceeded in a commercially
reasonable manner with all due diligence to construct, market and lease the Units, then, upon
written request by the Purchaser to the Company no earlier than three (3) months prior to the
Completion Date, the Completion Date shall be extended for an additional twelve months (the
“Completion Extension Date”).
(b) Upon completion of the Purchaser, the Purchaser shall lease each Unit for
residential purposes and either lease or use the Commercial Space for commercial purposes;
(c) The Purchaser shall commence construction of the Purchaser Project (as
evidenced by commencement of roadways and/or substantial sitework) within six (6) calendar
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months after the Conveyance and complete construction of the Purchaser Project within twenty-
four (24) months of the Closing Date.
(d) The Flat Building and the Multi-Use Building shall be deemed completed
upon the date that: (i) the City of Northampton has issued a temporary or permanent certificates
of occupancy for each Building or Unit, as applicable; and (ii) all landscaping is completed and
planted, except for such work that cannot be completed due to seasonal conditions.
If the performance by the Purchaser of any of its obligations under this Agreement is
delayed due to Force Majeure, the date of the performance of such obligations shall be likewise
extended by the number of days equal to such delay as a result of such Force Majeure.
The provisions of this Article VII shall survive the Closing and the conveyance of the Premises
to the Purchaser. The parties agree that the requirements of this Article VII shall be included as
a restriction in the deed conveying the Premises to the Purchaser or, alternatively, at the option of
the Company, in the Restrictive Covenant imposed by the Company on the Premises at the time
of the conveyance of the Premises to the Purchaser. The obligations of the Purchaser with
respect to this Article VII, at the option of the Company, may also be secured by a mortgage.
ARTICLE VIII
DESIGN REVIEW AND PLAN APPROVAL
Section 8.1 Design Review. Prior to the Purchaser’s submittal of an application, site
plans or permit application to the City of Northampton for the construction and/or alteration of
any building or structure on the Premises, the Purchaser shall submit to the Company the
requisite site plan and building and other facilities design plans for the Company’s review and
approval as set forth in this Article VIII. All design documentation submitted to the Company
shall conform to the Design Guidelines and the Residential Architectural Style Guide, copies of
which are attached hereto as Exhibits G and H respectively, and shall, to the best of the
Purchaser’s knowledge, comply with all applicable laws, including, but not limited to, building
codes, zoning ordinances, local health codes and fire codes. In addition to the number of hard
copies of the design documentation required to be submitted pursuant to Sections 8.2 and 8.3, the
Purchaser shall submit an electronic copy of the applicable design documentation (in DWG
format) as part of its submission of the applicable design documentation. One set of all design
documentation shall be delivered to each of the following persons: (i) Alan Delaney, Chief
Engineer, MassDevelopment, 33 Andrews Parkway, Devens, Massachusetts 01434
(adelaney@massdevelopment.com); (ii) Larry Spang, Arrowstreet Architects, 212 Elm Street,
Somerville, Massachusetts 02144; and (iii) Elizabeth Murphy, Vice President,
MassDevelopment, 1350 Main Street, Suite 1110, Springfield, Massachusetts 01103
(emurphy@massdevelopment.com).
Section 8.2 Site Plan and Schematic Design Plan Review.
(a) Prior to the conveyance of the Premises and no later than sixty (60) days
after the Due Diligence Period, the Purchaser shall submit to the Company three (3) full sets of
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site plans, schematic design plans, specifications and calculations (as well as a PDF electronic
version of such schematic design plans) (collectively referred to as the “Schematic Design
Plans”) showing:
(i) the layout of the Premises including: proposed building siting and massing
on the Premises and in the context of the properties within 500’ of the Premises; vehicular and
pedestrian access facilities; and Premises infrastructure proposed to be constructed on and/or off
the Premises.
(ii) the building(s) showing exterior perspective views, architectural details,
building elevations, treatment of roof-based structures, the proposed building materials for all
exterior components including cladding, roof, trim and windows, and plans for Premises grading,
landscaping and signage (if any);
(iii) all ancillary Premises facilities to be constructed by the Purchaser,
including, without limitation, parking lots, driveways, landscaping, and, if necessary, on-site
stormwater management and recharge systems;
(iv) calculations for parking requirements;
(v) stormwater drainage calculations and plans for treatment and discharge of
stormwater adequate for the Purchaser’s development of the Premises; and
(vi) calculations for utility usage and plans for all utility lines, pipes and/or
connections which are to be constructed by the Purchaser and located within or outside the
boundary lines of the Premises and which are adequate for Purchaser’s development of the
Premises (including but not limited to water, wastewater, electric, gas, and telecommunication
utilities).
(b) The Company shall review and comment on the Schematic Design Plans for:
(i) conformance with the Design Guidelines as previously provided to the
Purchaser;
(ii) determination by the Company that the Purchaser’s connection to the
utilities shall be within the boundaries of the Premises;
(iii) determination by the Company that the Schematic Design Plans satisfy
the approval criteria in Article V of the Declaration;
(iv) determination by the Company that the Schematic Design Plans comply
with the restrictions in Article III (2) of the Declaration;
(v) determination by the Company that the Schematic Design Plans conform
with all prior written commitments and agreements, if any, between the Purchaser and the
Company; and
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(vi) determination by the Company that the proposed management of on-site
stormwater shall not require the use of the off-site facilities or, if such use is required, that
sufficient capacity exists or can exist within the off-site facilities to manage such stormwater.
(c) the Company shall have ten (10) Business Days following receipt of the
Schematic Design Plans to approve the Schematic Design Plans, which approval shall be in
writing (the “Schematic Design Review Period”). If the Company reasonably determines that
the Schematic Design Plans substantially conform with the LDA, the Master Plan, the
Declaration, and the Design Guidelines, the Company shall approve such Schematic Design
Plans. The Company’s approval of the Schematic Design Plans shall signify only the
Company’s consent to the design work shown and shall not result in any responsibility of the
Company concerning compliance of the Schematic Design Plans with laws, regulations, or
codes, all of which shall be the responsibility of the Purchaser. In the event that the Company
does not respond to Purchaser’s submittal of the Schematic Design Plans on or before the end of
the Schematic Design Review Period, the Company shall be deemed to have approved the
Schematic Design Plans, provided that, in submitting the Schematic Design Plans for review and
approval, the Purchaser shall have the following legend prominently at the top of the transmittal
letter: “NOTICE PURSUANT TO SECTION 8.2(c) OF THE LAND DISPOSITION
AGREEMENT: IMPORTANT RIGHTS MAY BE LOST BY FAILURE TO ACT
PROMPTLY. THIS SUBMISSION WILL BE DEEMED APPROVED 10 BUSINESS
DAYS AFTER RECEIPT. If the Company determines that the Schematic Design Plans do not
conform to the LDA, the Master Plan, the Declaration, and/or the Design Guidelines or address
any issues set forth in the Notice of Conditional Approval of the Conceptual Design Plans, the
Company shall conditionally approve Schematic Design Plans setting forth, in writing, the
modifications to the Schematic Design Plans that is required in order for the Company to
approve the Schematic Design Plans (“Notice of Conditional Approval”) on or before the end of
the Schematic Design Review Period. Any components of the Schematic Design Plans not
addressed in the Notice of Conditional Approval shall be deemed to have been approved by the
Company. Following the receipt of the Notice of Conditional Approval, the Company and the
Purchaser shall proceed diligently and in good faith to resolve any matters set forth in the Notice
of Conditional Approval. Such matters shall be addressed prior to the submission of the
Construction Documents (defined in Section 8.3 below) and the resolution thereof incorporated
therein. The resolution of any issues set forth in the Notice of Conditional Approval shall be a
condition precedent to the Company’s approval of the Construction Documents. The Schematic
Design Plans approved by the Company shall form the basis for the Site Plan Approvals to be
obtained by the Purchaser with respect to the Premises as more particularly described in Section
2.6 above.
Section 8.3 Construction Document Review.
(a) Within ninety (90) days of notice from DHCD that the Purchaser has received
a LIHTC award as set forth in Section 5.7(a)(i), the Purchaser shall submit to the Company, in
the manner specified in Section 8.1, three (3) complete sets of final specifications, site plans and
final architectural building plans, showing, among other things, final building elevations,
selection of building materials and exterior colors, landscaping, grading, treatment of roof based
structures, stormwater management and, if appropriate, light, noise and odor emissions controls,
signage, if any, and including any samples of building materials and color when requested (the
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“Construction Documents”). The Construction Documents shall be in conformance with the
applicable legal requirements, including state building code, zoning ordinance, local health code
or fire code, shall incorporate the Company’s comments to the Schematic Design Plans, and shall
be submitted to the Company with a certification from the Purchaser’s architect or designer that
the Construction Documents substantially conform to the Design Guidelines and comply with
applicable state building code, zoning ordinance, local health code and fire code.
(b) The Company shall have ten (10) Business Days following receipt of the
Construction Documents to approve the Construction Documents, which approval shall be in
writing (the “Construction Document Review Period”). If Company reasonably determines that
the Construction Documents substantially conform to the Design Guidelines and conform with
the Schematic Design Plans submitted to and approved by Company, the Company shall approve
such Construction Documents. The Company’s approval of the Construction Documents shall
signify only the Company’s consent to the design work shown and shall not result in any
responsibility of the Company concerning compliance of the Construction Documents with laws,
regulations, or codes, all of which shall be the responsibility of the Purchaser. In the event that
the Company does not respond to the Purchaser’s submittal of the Construction Documents on or
before the end of the Construction Document Review Period, the Company shall be deemed to
have approved the Construction Documents, provided that, in submitting the Construction
Documents for review and approval, the Purchaser shall have the following legend prominently
at the top of the transmittal letter: “NOTICE PURSUANT TO SECTION 8.3(b) OF THE
LAND DISPOSITION AGREEMENT: IMPORTANT RIGHTS MAY BE LOST BY
FAILURE TO ACT PROMPTLY. THIS SUBMISSION WILL BE DEEMED APPROVED
10 BUSINESS DAYS AFTER RECEIPT. The Company may automatically extend the
Construction Document Review Period for five (5) calendar days upon notice to the Purchaser of
its election to extend such time period, provided that such notice is given to the Purchaser on or
before the end of the Construction Document Review Period. In the event that the Company
elects to not approve the Construction Documents, the Company shall provide a written response
stating that Company has rejected the Construction Documents and detailing the aspects of the
Construction Documents upon which the Company based its rejection (“Company’s Rejection
Notice”). Any components of the Construction Documents not addressed in the Company’s
Rejection Notice shall be deemed to have been approved by the Company. Following the receipt
of the Company’s Rejection Notice, the Company and the Purchaser shall proceed diligently and
in good faith to resolve any objections of the Company set forth in the Company’s Rejection
within thirty (30) days after the date of the Company’s Rejection Notice.
The Company’s approval of the Construction Documents shall be a condition
precedent to the City of Northampton’s approval of the Construction Documents and issuance of
a building permit. Upon approval of the Construction Documents and upon the request of the
Purchaser, the Company shall give a notarized certificate to the Purchaser, referencing the plans
which must be filed by the Purchaser with the City of Northampton Building Commission or the
Registry prior to the commencement of construction.
(c) The Company and the Purchaser acknowledge that the Construction Documents
as reviewed and approved by the Company may be subject to further review by the Purchaser’s
lenders and equity investor and as part of any value engineering process. In the event that such
reviews result in any Material Design Change(s) (as such term is defined in Section 8.4(b)), then
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the Purchaser shall submit such proposed Material Design Change(s) to the Company for review
and approval in accordance with the procedure set forth in Section 8.4(b).
Section 8.4 Design and Construction Process.
(a) To the extent that any comment or condition of the Company’s concerning the
Construction Documents (provided such comments or conditions are matters within the scope of
the Company’s right of review as defined herein) requires an amendment to the Purchaser’s Site
Plan Approval from the City of Northampton, the Purchaser shall be required, at its sole cost and
expense, to obtain such amendment as a precondition to the Company’s approval of the
applicable Design Documents and the conveyance of the Premises to the Purchaser.
(b) The Purchaser warrants and represents that any building or other structure,
including all utilities constructed by Purchaser, shall be constructed in accordance with the
Design Documents (excluding, however, any interior plans provided) and all other applicable
provisions of this Agreement and, further, that any material expansion or alteration of the
exterior portion or design of such buildings or structures including but not limited to antennae,
satellite dishes, paint color, cladding materials, trim, doors, windows, and roofing materials as
well as structural changes and/or samples of building materials, or the re-location of HVAC
equipment on the roof to the extent such re-location affects the visibility of such equipment at
grade (each a “Material Design Change”) shall be subject to the Company's prior review and
approval. The Purchaser shall submit to the Company, in the manner specified in Section 8.1,
four sets of architectural plans and specifications showing the proposed Material Design Change
(“Design Change Documents”). The Company shall have five (5) business days to review and
approve the Design Change Documents, which approval shall be in writing (the “Design Change
Review Period”). If the Company reasonably determines that the Design Change Documents
substantially conform with the Design Guidelines and the Residential Architectural Style Guide,
the Company shall approve such Design Change Documents. The Company’s approval of the
Design Change Documents shall signify only the Company’s consent to the design work shown
and shall not result in any responsibility of the Company concerning compliance of the Design
Change Documents with any laws, regulations or codes, all of which shall be the responsibility
of the Purchaser. In the event that the Company does not respond to the Purchaser’s submittal of
the Design Change Documents on or before the end of the Design Change Review Period, the
Company shall be deemed to have approved the Design Change Documents, provided that, in
submitting the Design Change Documents for review and approval, the Purchaser shall have the
following legend prominently at the top of the transmittal letter: “NOTICE PURSUANT TO
SECTION 8.4(b) OF THE LAND DISPOSITION AGREEMENT: IMPORTANT RIGHTS
MAY BE LOST BY FAILURE TO ACT PROMPTLY. THIS SUBMISSION WILL BE
DEEMED APPROVED 5 BUSINESS DAYS AFTER RECEIPT. In the event that the
Company elects to not approve the Design Change Documents, the Company shall provide a
written response stating that the Company has rejected the Design Change Documents and
detailing the aspects of the Design Change Documents upon which the Company based its
rejection (“Company’s Design Change Rejection Notice”). Any components of the Design
Change Documents not addressed in the Company’s Design Change Rejection Notice shall be
deemed approved by the Company. Following the receipt of the Company’s Design Change
Rejection Notice, the Company and the Purchaser shall proceed diligently and in good faith to
resolve any objections of the Company set forth in the Company’s Design Change Rejection
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Notice within five (5) Business Days after the date of the Company’s Design Change Rejection
Notice.
(c) The Company shall have the right to inspect the construction of the
Purchaser’s Project, at any time, to review the exterior and utilities and to ensure its construction
in substantial accordance with the Design Documents (excluding however any interior plans
provided). Such inspections shall occur as determined necessary by Company, but no less
frequently than at fifty percent completion, seventy-five percent completion and final
completion. Any construction of the Purchaser’s Project not in accordance with the Design
Documents, and/or applicable federal, state, and local law or regulation, as determined by the
Company in its sole discretion, shall be immediately remedied and repaired at the sole cost of the
Purchaser and/or its contractor, or in the alternative by the Company, in the event the Purchaser
fails for any reason to cure such defects within thirty (30) days after notice thereof, in which case
the Purchaser shall be solely responsible for all of the Company’s costs incurred in connection
with curing such defect. Such costs shall be immediately due and payable upon demand. The
Purchaser shall permit the Company and its contractors, agents and employees to have access to
the Premises at all reasonable times to monitor the Purchaser’s compliance with the terms and
conditions of this Agreement. Notwithstanding the foregoing self-help rights, if Purchaser shall
have commenced to cure any such defective construction within such 30 day period but such
failure cannot reasonably be cured within such 30 day period and the Purchaser thereafter
diligently and expeditiously proceeds to cure such failure, such 30 day period shall be extended
for an additional period of time as is reasonably necessary for the Purchaser in the exercise of
due diligence to cure such failure.
(d) In addition to the self-help remedy set forth in Section 8.4(c), the Purchaser
and the Company recognize and agree that any material difference (to be determined in
Company’s sole discretion) between the Design Documents (for the exterior), and the buildings,
Premises improvements or structures actually constructed by the Purchaser (to the extent such
difference has not been approved by Company as set forth in this Article VIII) shall entitle the
Company to injunctive relief requiring the Purchaser to remedy any such material difference as
no remedy at law shall be adequate to compensate the Company.
(e) Prior to the commencement of construction, the Purchaser shall submit a
Construction Management Plan to the Company for review and approval. The approved
Construction Management Plan shall be submitted to the Executive Office of Environmental
Affairs in compliance with the Section 61 Findings. The Construction Management Plan will
address potential air, noise and traffic impacts and hours of operation and will provide a plan to
eliminate, minimize or mitigate these impacts. All construction contractors hired by the
Purchaser will be bound to the terms of the Construction Management Plan. The relevant
provisions of the Section 61 Findings are attached hereto as Exhibit I which is incorporated
herein by reference.
(f) The Purchaser shall provide the Company with a hard copy and electronic
copy of the Construction Documents (in a form acceptable to the Company’s manager’s
Engineering Department) approved by the Company and the City of Northampton.
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The provisions of this Section 8.4 shall survive the Closing and the conveyance of the Premises
to the Purchaser. The parties agree that the design review requirements of this Article VIII shall
be included as a restriction in the deed from the Company conveying the Premises to the
Purchaser and/or in the Restrictive Covenant to be imposed by the Company upon the Premises
at the time of conveyance of the Premises by the Company to the Purchaser. The obligations of
the Purchaser with respect to this Article VIII, at the option of the Company, may also be
secured by a mortgage. In the event that such obligations are secured by a mortgage, the
Company shall enter into a standstill agreement on commercially reasonable terms with the
Purchaser’s lenders concerning the exercise of default rights and remedies under their respective
mortgages.
Section 8.5 Notice of Completion. During the construction of the Purchaser Project
and until the issuance of a Notice of Completion, the Premises is subject to the Construction
Period Surviving Covenants set forth in Section 8(A)(1) of the LDA. Promptly, after the
completion of construction of the Purchaser Project, the Purchaser shall furnish the Company
with a certificate(s) from a register architect or engineer duly licensed under the laws of the
Commonwealth of Massachusetts and reasonably acceptable to the Company (or, in the case of
the single-family Units from a building designer approved by the Company) certifying as to the
completion of the Purchaser Project in accordance with the Development Requirements,
applicable zoning and subdivision ordinances, provisions of the state building code, all
applicable environmental laws and regulations, all applicable federal, state and local codes, laws
and requirements and all applicable permits and approvals, or other form of certification
acceptable to the Company (“Notice of Completion Certification”). Provided that the Notice of
Completion Certification is in a form and substance reasonably satisfactory to the Company, the
Company’s manager, Massachusetts Development Finance Agency, shall provide the Purchaser,
within ten (10) Business Days of its receipt of such certifications, a Notice of Completion which
notice shall refer to the Construction Period Surviving Covenants set forth in Section 8(A)(1) of
the LDA and the Right of Reverter set forth in Section 4(B) of the LDA and shall state that it
constitutes a conclusive determination of satisfaction and termination of the same with respect to
the obligation to construct such improvements pursuant to Section 10(E) of the LDA.
Upon completion of the Purchaser Project, including the satisfactory completion of
the Purchaser’s obligations under Article VII of this Agreement, and the delivery by the
Purchaser of a Notice of Completion Certification to the Company, provided that such
certification is in form and substance reasonably satisfactory to the Company, the Company’s
manager, Massachusetts Development Finance Agency, shall provide the Purchaser, within ten
(10) days of its receipt of such certification, a Partial Notice of Completion which notice shall
refer to the Construction Period Surviving Covenants set forth in Section 8(A)(1) of the LDA
and the Right of Reverter set forth in Section 4(B) of the LDA and shall state that it constitutes a
conclusive determination of satisfaction and termination of the same with respect to the
obligation to construct the Purchaser Project pursuant to Section 10(E) of the LDA.
ARTICLE IX
INSURANCE REQUIREMENTS DURING CONSTRUCTION
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Section 9.1 Insurance Requirements During Construction Period.
(a) The Purchaser shall, at all times prior to the final completion of the Purchaser
Project, maintain and deliver to the Company evidence of and keep in full force and effect, or
cause the development manager and general contractor(s) for the Purchaser Project to maintain
and deliver to the Company evidence of and keep in full force and effect, not less than the
following coverage and limits of insurance: (1) Workers’ Compensation and Employer’s
Liability - Workers’ Compensation coverage equal to at least the greater of (i) such limits as are
required by law and (ii) $500,000 per injury, $500,000 per accident and $500,000 per disease,
(2) Comprehensive General Liability - limits of at least $1,000,000 per occurrence and
$2,000,000 in the aggregate; (3) Automotive Liability - Combined Single Limit - $1,000,000; (4)
if any of the part of the Premises upon which any improvements are to be constructed is
identified by the Secretary of Housing and Urban Development as being in an area or community
having special flood, mudslide, erosion or other hazards and if flood insurance is available from
the National Flood Insurance Program (“NFIP”) or other commercial insurer, then flood
insurance must be obtained under NFIP or from such other insurer, as applicable, in an amount
equal to the original principal amount of the amount of any financing for the Purchaser Project,
or the maximum amount available, whichever is less; and (5) Builder’s Risk – in an amount
equal to the amount required by the lenders of the Purchaser Project, but not less than the
replacement cost value of the Purchaser Project. The automobile and general liability policies
shall be accompanied by an umbrella policy with a combined limit of $2,000,000. During the
construction of any roadway infrastructure either the Purchaser or its roadway contractor shall
provide automobile and general liability policies accompanied by an umbrella policy with a
combined limit of $5,000,000.
(b) All policies of insurance shall include Hospital Hill Development, LLC,
Massachusetts Development Finance Agency and The Community Builders, Inc., as their
interests may appear, as additional insured’s, shall be issued by companies licensed or approved
by the Commonwealth of Massachusetts’ Insurance Commissioner and rated A-VII or better in
the most recent edition of Best’s Insurance Guide with respect to primary levels of coverage and
shall be issued and delivered in accordance with Commonwealth law and regulations.
(c) Prior to the Closing, the Purchaser shall deliver to the Company copies of all
required policies and endorsements thereto on forms which are acceptable to the Company. In
addition, all of the Purchaser’s insurance policies shall contain an endorsement providing that
written notice shall be given to the Company at least thirty (30) calendar days prior to
termination, cancellation or reduction of coverage in the policy.
(d) The Purchaser may effect the insurance coverage provided herein under
blanket insurance policies; provided, however, that (i) such policies are written on a per-
occurrence basis, (ii) such policies comply in all other respects with the provisions of this
Section 9.1, and (iii) the protection afforded under any such policy shall be no less than that
which would be available under a separate policy relating only to this Agreement. If any
coverage required by this Agreement is provided under blanket insurance policies, promptly
upon execution of this Agreement and annually thereafter, the Purchaser shall provide the
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Company with a list of the projects covered by such blanket insurance policies, the dollar amount
of each project covered and such other information as the Company may request to enable it to
evaluate whether the requirements of this Article have been met.
The foregoing requirements as to the types and limits of insurance coverage to be
maintained by the Purchaser are not intended to and shall not in any manner limit or qualify the
liabilities and obligations assumed by the Purchaser under this Agreement or constitute a
representation or warranty by the Company that the coverage provided by such insurance is
adequate for purposes of the Purchaser or for any other purpose other than the protection of the
interests of the Company and its members.
ARTICLE X
REPRESENTATIONS, WARRANTIES AND COVENANTS
Section 10.1 Representations of Hospital Hill Development LLC.
(a) Organization. The Company is duly organized and validly existing under the
laws of the State of Delaware, is authorized to do business in the Commonwealth of
Massachusetts, is in compliance with the laws of the Commonwealth of Massachusetts, and has
the power and authority to own its properties and assets and to carry on its business in the
Commonwealth of Massachusetts as now being conducted and as hereby contemplated.
(b) Authority. The Company has the power and authority to enter into this
Agreement, and has taken all action necessary to cause this Agreement to be executed and
delivered, and this Agreement has been duly and validly executed and delivered by the
Company.
(c) Binding Obligation. This Agreement is a legal, valid and binding obligation
of the Company, enforceable against the Company in accordance with its terms, except as
enforceability may be subject to the exercise of judicial discretion in accordance with general
equitable principles and to applicable bankruptcy, insolvency, reorganization, moratorium and
other laws for the relief of debtors heretofore or hereafter enacted to the extent that the same may
be constitutionally applied.
(d) No Material Litigation. There are no actions, suits or proceedings pending or,
to the knowledge of the Company, threatened, against or affecting the Company or the Property
which, if determined adversely to the Company, would adversely affect its ability to perform its
obligations hereunder.
(e) No Conflicts. Neither the execution, delivery or performance of this
Agreement nor compliance herewith (a) conflicts or will conflict with or results or will result in a
breach of or constitutes or will constitute a default under (1) the charter or by-laws of the
Company, (2) to the best of the Company’s knowledge, any law or any order, writ, injunction or
decree of any court or governmental authority; or (3) any agreement or instrument to which the
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Company is a party or by which it is bound or (b) results in the creation or imposition of any
lien, charge or encumbrance upon its property pursuant to any such agreement or instrument.
(f) No Approvals Required. No authorization, consent, or approval of any
governmental authority (including courts) is required for the execution and delivery by the
Company of this Agreement or the performance of its obligations hereunder.
(g) FIRPTA. The Company is not a “foreign person” as defined in Section 1445
of the Code.
(h) Representations Concerning the Premises
(i) The Company has received no written notice from any
governmental authorities: (1) that there currently is any pending condemnation or eminent
domain proceeding relating to the Premises, or (2) that any such proceeding is currently
contemplated.
(ii) The Company has not received any written notice from any
governmental agency requiring the correction of any condition with respect to the Premises, or
any part thereof, by reason of a material violation of any applicable federal, state, county or
municipal law, code, rule or regulation, which has not been cured or waived.
(iii) The Company has received no written notice that any litigation
materially affecting the Premises is pending or currently threatened.
(iv) The Company shall not create, allow, or suffer to be created on the
Premises any easement, lien, mortgage, encumbrance, defect or other interest in favor of third
parties unless agreed to in writing by the Purchaser. There are no outstanding contracts, options
to purchase, or rights of first refusal concerning the sale or other transfer of the Premises other
than this Agreement.
(v) The Company has not installed any underground storage tanks on
the Premises and, to the best of the Company’s knowledge, the Company has no knowledge of
any underground storage tanks on the Premises.
Section 10.2 Representations, Warranties and Covenants of the Purchaser.
(a) Organization. The Purchaser is duly organized and validly existing under the
laws of the Commonwealth of Massachusetts, is authorized to do business in the Commonwealth
of Massachusetts, is in compliance with the laws of the Commonwealth of Massachusetts, and
has the power and authority to own its properties and assets and to carry on its business in the
Commonwealth of Massachusetts as now being conducted and as hereby contemplated.
(b) Authority. The Purchaser has the power and authority to enter into this
Agreement, and has taken all action necessary to cause this Agreement to be executed and
delivered, and this Agreement has been duly and validly executed and delivered by the
Purchaser.
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(c) Binding Obligation. This Agreement is a legal, valid and binding obligation
of the Purchaser, enforceable against the Purchaser in accordance with its terms, except as
enforceability may be subject to the exercise of judicial discretion in accordance with general
equitable principles and to applicable bankruptcy, insolvency, reorganization, moratorium and
other laws for the relief of debtors heretofore or hereafter enacted to the extent that the same may
be constitutionally applied.
(d) Compliance with Laws. In the permitting, design, acquisition and
construction of the Purchaser Project, the Purchaser has complied and will comply with the
provisions of this Agreement, the LDA, the Design Documents, and all applicable building,
zoning, land use, environmental protection, sanitary and safety laws, rules and regulations, and all
applicable grant, reimbursement and insurance requirements, and will not permit a nuisance
thereon; but it shall not be a breach of this subsection if the Purchaser fails to comply with such
laws, rules, regulations and requirements (other than Chapter 21E of the Massachusetts General
Laws, as amended) during any period in which the Purchaser is diligently and in good faith
contesting the validity thereof. The Purchaser shall not with knowledge commit, suffer or permit
any act to be done in, upon or to the lands in the North Campus in violation of any law,
ordinance, rule, regulation or order of any governmental authority or any covenant, condition or
restriction now or hereafter contained in the Declaration, By-laws of the Hospital Hill
Development North Association or any other agreement affecting the North Campus or the
Purchaser Project.
(e) Litigation. There are no pending or, to the best of the Purchaser’s
knowledge, threatened actions, suits, or proceedings before any court, arbitrator or governmental
or administrative body or agency which may materially adversely affect the properties, business
or condition, financial or otherwise, of the Purchaser or its ability to perform its obligations
under this Agreement.
(f) No Conflicts. Neither the execution, delivery or performance of this
Agreement nor compliance herewith (a) conflicts or will conflict with or results or will result in a
breach of or constitutes or will constitute a default under (1) the charter or by-laws of the
Purchaser, (2) to the best of the Purchaser’s knowledge, any law or any order, writ, injunction or
decree of any court or governmental authority; or (3) any agreement or instrument to which the
Purchaser is a party or by which it is bound or (b) results in the creation or imposition of any
lien, charge or encumbrance upon its property pursuant to any such agreement or instrument.
(g) No Approvals Required. No authorization, consent, or approval of any
governmental authority (including courts) is required for the execution and delivery by the
Purchaser of this Agreement or the performance of its obligations hereunder.
(h) Taxpayer Identification No. The Purchaser’s taxpayer identification number
is 04-2324773.
(i) Completion of Project. The Purchaser will complete the Purchaser Project in
accordance with the Residential Development Requirements and the Master Schedule.
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Section 10.3 The Company’s Knowledge. Whenever a representation is qualified by
the phrase “to the best of the Company’s knowledge”, or by words of similar import, the
accuracy of such representation shall be based solely on the actual (as opposed to constructive or
imputed) knowledge of Elizabeth Murphy (“Murphy”) and Alan Delaney (“Delaney”), without
independent investigation or inquiry. Murphy is the Company’s project/asset manager for the
Premises and Delaney is the chief engineer of the construction and redevelopment activity for the
Village Hill Project of which the Premises is a part.
Section 10.4. Certain Reports. No later than five (5) Business Days following the
Effective Date, the Company shall make available for the Purchaser’s review at its manager’s
office located at 33 Andrews Parkway, Devens, Massachusetts any and all reports to the
Company by any third party engineering, architectural or environmental consultants concerning
the physical or environmental condition of the Premises (“Reports”). The Purchaser understands
and acknowledges that any Reports provided to the Purchaser are without any representation or
warranty, express or implied, as to the completeness or accuracy of the facts, presumptions,
conclusions or other matters contained therein. The Purchaser has been expressly advised by the
Company to conduct an independent investigation and inspection of the Premises utilizing
experts as the Purchaser deems to be necessary for an independent assessment of all liability and
risk, with respect to the Premises. The Purchaser shall rely only on the Company
Representations, and upon the Purchaser’s own investigations and inquiries with respect to all
such liability and risk, including all liability and risk with respect to the presence of Hazardous
Materials in, on or around the Premises.
ARTICLE XI
“AS IS” SALE
The Purchaser agrees that the Premises shall be sold and that the Purchaser shall accept
possession of the Premises on the Closing Date strictly on an “as is, where is, with all faults”
basis, with no right of set-off or reduction in the Purchase Price, and that, except for the
Company Representations, such sale shall be without representation or warranty of any kind,
express or implied, including any warranty of uses or fitness for a particular purpose, and the
Company does hereby disclaim and renounce any such representation or warranty. The
Purchaser specifically acknowledges that, except for the Company Representations, the
Purchaser is not relying on any representations or warranties of any kind whatsoever, express or
implied, from the Company, or any broker or other agents as to any matters concerning the
Premises including: (1) the condition or safety of the Premises soils and geology, lot size, or
suitability of the Premises for a particular purpose; (2) the condition of title to the Premises; (3)
the legal or tax consequences of this Agreement or the transactions contemplated hereby; (4) the
possible presence of Hazardous Materials in, under or near the Premises; and (5) the
completeness or accuracy of any information provided to the Purchaser by the Company or its
agents. The Purchaser understands the legal significance of the foregoing provisions and
acknowledges that they are a material inducement to the Company’s willingness to enter into this
Agreement.
ARTICLE XII
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DEFAULT
Section 12.1 Event of Default. The occurrence of any one or more of the following
events shall constitute a default or an event of default under this Agreement:
(a) The Company fails to perform the Company’s Obligations hereunder and such
failure continues for sixty (60) days after written notice thereof from the Purchaser to the
Company provided, however, that if the curing of such default cannot be accomplished with due
diligence within said period of sixty (60) days then the Company shall have such additional
reasonable period of time to cure such default as may be necessary provided the Company shall
have commenced to cure such default within said period, such cure shall have been diligently
prosecuted by the Company thereafter to completion;
(b) The Purchaser fails to observe or perform any covenant, condition or agreement
to be observed or performed by the Purchaser pursuant to the terms of this Agreement or the
Development Requirements and the continuance of such default for sixty (60) days after written
notice thereof from the Company to the Purchaser provided, however, that if the curing of such
default cannot be accomplished with due diligence within said period of sixty (60) days then the
Purchaser shall have such additional reasonable period of time to cure such default as may be
necessary provided the Purchaser shall have commenced to cure such default within said period,
such cure shall have been diligently prosecuted by the Purchaser thereafter to completion and the
Company does not reasonably deem the Premises or the Purchaser Project jeopardized by such
further delay.
(c) The Purchaser executes an assignment for the benefit of creditors, deed of trust or
similar document;
(d) The Purchaser admits being, or is finally adjudicated to be, insolvent;
(e) a receiver, guardian, conservator, trustee, custodian or similar officer is appointed
for any property of the Purchaser and the same is not discharged within sixty (60) days;
(f) a voluntary or involuntary petition under any insolvency or bankruptcy law,
including a petition for reorganization, is filed for the Purchaser and is not dismissed within sixty
(60) days; and
(g) Any representation or warranty made herein shall prove to be false in any material
respect.
Section 12.2 Remedies for Default
(a) In the event of a material default by the Company which is not cured within the
time period allowed under Section 12.1, the Company and the Purchaser acknowledge and agree
that any damages incurred by the Purchaser as a result of such material default would be difficult
or impossible to ascertain; therefore, the Purchaser shall have, as its sole and exclusive remedies
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under this Agreement, the right to either (i) terminate this Agreement by written notice to the
Company, or (ii) seek specific performance of the Company’s obligations under this Agreement.
Under no circumstances shall the Purchaser be entitled to any award of damages as a result of
any default by the Company, including without limitation, any direct, indirect, consequential,
special or other damages. In the event of a default by the Company and the Purchaser’s election
to terminate this Agreement, the Purchaser shall be entitled to a return of the portion of the
Deposit being held by the Escrow Agent at the time of such default.
(b) In the event of a material default by the Purchaser as described in Section 12.1
that occurs prior to the conveyance of the Premises by the Company to the Purchaser, the
Company and the Purchaser acknowledge and agree that the damages that would be incurred by
the Company as a result of any such default are difficult or impossible to ascertain. Accordingly,
the Company and the Purchaser agree that in the event of a default by the Purchaser prior to the
conveyance of the Premises (or any portion thereof) by the Company to the Purchaser, the
Company shall be entitled to retain the Deposit as liquidated damages and as the Company’s sole
and exclusive remedy as a result of any such default by the Purchaser prior to the conveyance of
the Premises by the Company to the Purchaser. The Company and the Purchaser acknowledge
and agree that the Deposit constitutes the best pre-estimate of the damages that would be
incurred by the Company as a result of any such default, and the Company and the Purchaser
therefore agree that the retention of the Deposit by the Company as liquidated damages
constitutes the award of damages to the Company and does not constitute a penalty. The
Company and the Purchaser further agree that in the event of a default by the Purchaser as
described in Section 12.1 at anytime following the conveyance of the Premises (or any portion
thereof) to the Purchaser, the Company may at any time thereafter, at its option and without
notice (except as specifically provided herein), exercise any one or more of the following
remedies as to the portion of the Premises then conveyed:
(i) Perform any warranty, covenant or agreement which the Purchaser has
failed to perform under this Agreement or the Development Requirements, whereupon
the Purchaser shall reimburse the Company for the costs incurred by the Company in
effecting such cure;
(ii) Exercise any right or remedy available to the Company under this
Agreement;
(iv) Exercise any other right or remedy available to the Company under any
other instrument, or at law, or in equity, including actions or proceedings to compel
specific performance;
(v) Take any other action that the Company deems necessary or desirable to
protect its rights under this Agreement or the LDA; and
(vi) Proceed to exercise its remedies under the Company Mortgage, if any,
including any right of foreclosure.
(c) In the event of a material default by a party (the “Defaulting Party”), the
Defaulting Party shall be liable to the other party (the “Non-Defaulting Party”) for all costs and
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expenses, including reasonable attorneys' fees, incurred or paid by the Non-Defaulting Party in
any proceeding brought to enforce the obligations of the Defaulting Party as set forth in this
Agreement;
(d) If a default occurs hereunder, then prior to exercising any remedies hereunder the
Company shall give the Purchaser written notice of such default.
(e) The remedies of the Company as provided in this Agreement shall be cumulative
and concurrent, and may be pursued singly, successively or concurrently at the sole discretion of
the Company. No remedy of the Company under this Agreement is intended to be exclusive of
any other remedy under this Agreement or afforded by law or equity, but each shall be
cumulative and shall be in addition to every other remedy given to the Company under this
Agreement, now or hereafter existing at law or in equity.
ARTICLE XIII
MISCELLANEOUS
Section 13.1 Acceptance of Deed. The acceptance of a deed by the Purchaser shall be
deemed to be a full performance and discharge every agreement and obligation of the Company
contained in this Agreement that are applicable to the Premises, except such agreements or
obligations which by the terms thereof, are to be performed after the delivery of such deed or are
to survive the delivery of the deed, all of which shall survive the delivery of the deed.
Section 13.2 Financial Obligations. Nothing contained in this Agreement is intended
to impose any pecuniary liability on the Company or its members nor shall it in any way obligate
the Company or its members to pay any debt or meet any financial obligations to any person at
any time in relation to the Purchaser Project. No manager, member of the Company, or any
employee, officer or agent of its members, shall incur any liability hereunder to the Purchaser or
any other party in their individual capacities by reason of their actions hereunder or execution
hereof.
Section 13.3 Notices. Any notice, payment or instrument required or permitted by this
Agreement to be given or delivered to either party shall be deemed to have been received when
personally delivered, with signed receipt, sent by commercial overnight courier which requires a
signed receipt upon delivery, or transmitted by electronic mail or facsimile transmission (which
shall be immediately confirmed by telephone and shall be followed by mailing an original of the
same within 24 hours after such transmission), as follows:
The Company: Massachusetts Development Finance Agency
99 High Street
Boston, MA 02110
Attn: Executive Vice President of Real Estate
Email: rhenderson@massdevelopment.com
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With a copy to: Massachusetts Development Finance Agency
99 High Street
Boston, MA 02110
Attn: General Counsel
Email: pdeangelis@massdevelopment.com
Nolan Sheehan Patten LLP
101 Federal Street, 18th Floor
Boston, MA 02110
Attn: Hannah L. Kilson, Esq.
Email: Kilson@nspllp.com
Purchaser: The Community Builders, Inc.
185 Dartmouth Street, 9th Floor
Boston, MA 02116
Attn: Eliza Datta
Email: edatta@tcbinc.org
With a copy to: The Community Builders, Inc.
185 Dartmouth Street, 9th Floor
Boston, MA 02116
Attn: General Counsel
Email: jklein@tcbinc.org
Each party may change its address or addresses for delivery of notice by delivering written
notice of such change of address to the other party. Any notice to be given by any party hereto
may be given by counsel for such party.
Section 13.4 Severability. If any part of this Agreement is held to be illegal or
unenforceable by a court of competent jurisdiction, the remainder of this Agreement shall be
given effect to the fullest extent possible.
Section 13.5 Successors and Assigns. This Agreement shall be binding upon and inure
to the benefit of the successors and permitted assigns of the parties hereto. Prior to the
completion of the Purchaser Project, this Agreement shall not be assigned by the Purchaser and
no ownership interest of more than 50% of Purchaser shall be sold, assigned or otherwise
transferred without the prior written consent of the Company, which consent shall be in its sole
discretion. Notwithstanding the foregoing, the Company recognizes that the equity financing for
the Purchase Project is dependent upon the admission of an investor limited partner that will hold
99.9% of the interest in the Purchaser, and agrees that its consent to such admission shall not be
unreasonably withheld, conditioned or delayed. In connection with any such consent of the
Company, the Company may condition its consent upon the acceptability of the financial
condition of the proposed assignee, upon the assignee’s express assumption of all obligations of
the Purchaser hereunder and/or upon any other factor which the Company deems relevant in the
circumstances. In any event, any such assignment shall be in writing, shall clearly identify the
scope of the rights and/or obligations assigned and shall not be effective until approved by the
Company. Neither an assignment of this Agreement nor any change in the ownership of the
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Purchaser shall relieve the Purchaser of its obligations hereunder and the Purchaser shall remain
liable for all of the Purchaser’s obligations under this Agreement.
Section 13.6 Waiver. Failure by a party to insist upon the strict performance of any of
the provisions of this Agreement by the other party, or the failure by a party to exercise its rights
upon the default of the other party, shall not constitute a waiver of such party’s right to insist and
demand strict compliance by the other party with the terms of this Agreement thereafter.
Section 13.7 Parties in Interest. Nothing in this Agreement, expressed or implied, is
intended to or shall be construed to confer upon or to give to any person or entity other than the
Company and the Purchaser any rights, remedies or claims under or by reason of this Agreement
or any covenants, conditions or stipulations hereof, and all covenants, conditions, promises and
agreements in this Agreement contained by or on behalf of the Company or the Purchaser shall
be for the sole and exclusive benefit of the Company and the Purchaser, except that,
notwithstanding the forgoing, Massachusetts Development Finance Agency and The Community
Builders, Inc. are intended to be and shall be a third party beneficiary of this Agreement,
including without limitation the right to enforce the provisions of Section 7.4 applicable to it.
Section 13.8 Amendment. This Agreement may be amended, from time to time only
upon written amendment executed by both the Company and the Purchaser.
Section 13.9 Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original and all of which together shall constitute
one and the same instrument.
Section 13.10 Governing Law. This Agreement will be governed by and construed in
accordance with the laws of the Commonwealth of Massachusetts. Any suit, action, or
proceeding, whether claim or counterclaim, brought or instituted by any party hereto on or with
respect to this Agreement or which in any way relates, directly or indirectly, to this Agreement or
any event, transaction, or occurrence arising out of or in any way connected with this Agreement
or the Property, or the dealings of the parties with respect thereto, shall be tried only by a court
and not by a jury. EACH PARTY HEREBY EXPRESSLY WAIVES ANY RIGHT TO A
TRIAL BY JURY IN ANY SUCH SUIT, ACTION, OR PROCEEDING.
Section 13.11 Anti-Discrimination Provision. In the construction and development of
the Purchaser Project and the leasing of Units, the Purchaser covenants that it shall not restrict
the rental, lease or use of the Premises or any Unit on the basis of race, sex, creed, color, age,
disability or national origin or any other basis prohibited by law and the Purchaser shall not
discriminate upon the basis of race, sex, creed, color, age, disability or national origin or any
other basis prohibited by law in the sale, lease or rental, or use or occupancy of any Unit, the
Commercial Space or other improvements erected thereon.
Section 13.12 Time of the Essence. Time is of the essence of this Agreement and all
covenants and deadlines hereunder. The agreement of the Purchaser and the Company that time
is of the essence of each and every provision of this Agreement shall not be waived or modified
by any conduct of the parties, and the agreement of the Purchaser and the Company that time is
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of the essence of each and every provision of this Agreement may only be modified or waived by
the express written agreement of the Purchaser and the Company that time shall not be of the
essence with respect to a particular date or time period, or any modification or extension thereof,
which is provided under this Agreement.
Section 13.13 IRS Real Estate Sales Reporting. The Purchaser and the Company
hereby agree that David Bloomberg of Fierst, Kane & Bloomberg, LLP, shall act as “the person
responsible for closing” the transaction which is the subject of this Agreement pursuant to
Section 6045(e) of the Code and shall prepare and file all informational returns, including IRS
Form 1099-S, and shall otherwise comply with the provisions of Section 6045(e) of the Code.
Section 13.14 Time Periods. In the event the time for performance of any obligation
hereunder expires on a day that is not a Business Day, the time for performance shall be
extended to the next Business Day.
Section 13.15 No Implied Agreement. Neither the Company nor the Purchaser shall
have any obligations in connection with the transaction contemplated by this Agreement unless
both the Company and the Purchaser, each acting in its sole discretion, elects to execute and
deliver this Agreement to the other party. No correspondence, course of dealing or submission
of drafts or final versions of this Agreement between the Company and the Purchaser shall be
deemed to create any binding obligations in connection with the transaction contemplated
hereby, and no contract or obligation on the part of the Company or the Purchaser shall arise
unless and until this Agreement is fully executed by both the Company and the Purchaser. Once
executed and delivered by the Company and the Purchaser, this Agreement shall be binding upon
them notwithstanding the failure of Escrow Agent or any broker or other person to execute this
Agreement.
Section 13.16 Limitations on Liability. Notwithstanding anything to the contrary in
this Agreement, and subject to any additional limitations on Company’s liability set forth
elsewhere in this Agreement: (a) Purchaser’s recourse against Company under this Agreement or
any agreement, document, certificate or instrument delivered by Company hereunder, or under
any law, rule or regulation relating to the Premises, shall be limited to Company’s interest in the
Premises (or, following the Closing, to the net proceeds of the sale of the Premises actually
received by Company); and (b) in no event shall any of the Company Parties have any personal
liability hereunder or otherwise. Notwithstanding anything to the contrary in this Agreement,
and subject to any additional limitations on the Purchaser’s liability set forth elsewhere in this
Agreement, the Purchaser and the Purchaser’s members, and their respective agents, officers,
members, directors, trustees, advisors, managers and employees shall not have any personal
liability hereunder or otherwise.
Section 13.17 Further Instruments. Each party, promptly upon the request of the other,
shall execute and have acknowledged and delivered to the other or to Escrow Agent, as may be
appropriate, any and all further instruments reasonably requested or appropriate to evidence or
give effect to the provisions of this Agreement and which are consistent with the provisions of
this Agreement.
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Section 13.18 Descriptive Headings; Word Meaning. The descriptive headings of the
paragraphs of this Agreement are inserted for convenience only and shall not control or affect the
meaning or construction of any provisions of this Agreement. Words such as “herein”,
“hereinafter”, “hereof” and “hereunder” when used in reference to this Agreement, refer to this
Agreement as a whole and not merely to a subdivision in which such words appear, unless the
context otherwise requires. The singular shall include the plural and the masculine gender shall
include the feminine and neuter, and vice versa, unless the context otherwise requires. The word
“including” shall not be restrictive and shall be interpreted as if followed by the words “without
limitation.”
Section 13.19 No Recording. The provisions hereof shall not constitute a lien on the
Property. Neither the Purchaser nor its agents or representatives shall record or file this
Agreement or any notice or memorandum hereof in any public records. If the Purchaser
breaches the foregoing provision, this Agreement shall, at Seller’s election, terminate, and the
Company shall retain the Deposit in accordance with Section 12.2. The Purchaser hereby
irrevocably appoints the Company as its true and lawful attorney-in-fact, coupled with an
interest, for the purpose of executing and recording such documents and performing such other
acts as may be necessary to terminate any recording or filing of this agreement in violation of
this provision.
[THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK.
THE NEXT PAGE IS THE SIGNATURE PAGE.]
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List of Exhibits
Exhibit A – Site Plan
Exhibit B – Conceptual Master Plan
Exhibit C – Wiring Instructions
Exhibit D – Common Expenses Budget
Exhibit E – Form of Release Deed
Exhibit F-1 – Form of Company’s Representation Certificate
Exhibit F-2 – Form of Purchaser’s Representation Certificate
Exhibit G – Design Guidelines for Village Hill
Exhibit H – Residential Architectural Style Guide
Exhibit I – Section 61 - Construction Mitigation Requirements
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EXHIBIT A
Site Plan
[See Attached]
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EXHIBIT B
Conceptual Master Plan
[See Attached]
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EXHIBIT C
Wiring Instructions
NSP Webster Bank IOLTA Account Wiring Instructions
Account Name and Number:
Webster Bank, N.A.
Nolan Sheehan Patten LLP IOLTA Account
Acct: # 9320329712
ABA Routing # 211170101
Webster Bank, N.A.
145 Bank Street
Waterbury, CT 06702
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EXHIBIT D
Common Expenses Budget
[See Attached]
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EXHIBIT E
Form of Release Deed
HOSPITAL HILL DEVELOPMENT LLC, a Delaware limited liability company with a usual
place of business c/o Massachusetts Development Finance Agency, 99 High Street, Boston,
Massachusetts (the “Grantor”) for consideration paid of
________________________________________, release to
_______________________________________with a usual place of business at
_______________________________ (the “Grantee”), without any covenants and without any
representations and warranties of any kind whatsoever, the land in Northampton, Hampshire County,
Massachusetts, more particularly described as follows:
[LEGAL DESCRIPTION]
Hereby conveying a portion of the same premises as were conveyed to Grantor by a Release Deed
dated November 25, 2002 and recorded in the Hampshire Country Registry of Deeds at Book 6925, Page
302 and shown as a part of Parcels A and H on that certain plan entitled “Boundary Survey of Land of the
Commonwealth of Massachusetts formerly the Northampton State Hospital, Northampton,
Massachusetts” dated December 17, 1996, last revised December 18, 1997, prepared by Roberge
Associates Land Surveying (“Boundary Survey”) and recorded with the Hampshire County Registry of
Deeds in Plan Book 183, Pages 1 through 6.
The Premises are conveyed subject to the terms of the Land Disposition Agreement between the
Commonwealth of Massachusetts, acting by and through its Division of Capital Asset Management and
Maintenance of the Executive Office for Administration and Finance and The Community Builders, Inc.,
dated September 5, 2002, recorded in the Hampshire County Registry of Deeds at Book 6925, Page 186.
The Premises are conveyed subject to the terms and conditions of a Special Permit Decision
issued by the Northampton Planning Board on September 26, 2002 which is recorded in the Hampshire
County Registry of Deeds in Book 6835, Page 81. SUBJECT also to the Amendment to the Special
Permit issued on August 14, 2003 and recorded in the Hampshire County Registry of Deeds in Book
8024, Page 249, and further amendment on February 19, 2004 in accord with a settlement agreement
dated January 30, 2004 (Land Court No. 292406) which is recorded in the Hampshire County Registry of
Deeds in Book 8024, Page 252., and further amendment on August 6, 2007 and record in the Hampshire
County Registry of Deeds in the Hampshire County Registry of Deeds at Book 9282, Page 103 and
further amendment on March 6, 2009 and recorded in the Hampshire County Registry of Deeds in Book
9957, Page 56 (collectively, including the original Special Permit and all Amendments thereto, the
“Special Permit”).
The Premises are conveyed subject to the Definitive Subdivision Approval Conditions issued by
the Northampton Planning Board on January 22, 2004, which is recorded in the Hampshire Registry of
Deeds in Plan Book 202, Page 75.
The Premises are conveyed subject to the Definitive Subdivision Approval Conditions issued by
the Northampton Planning Board on July 26, 2007, which is recorded in the Hampshire Registry of Deeds
in Book 9318, Page 289.
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The Premises are conveyed subject to the Definitive Subdivision Approval Conditions issued by
the Northampton Planning Board on April 23, 2009, which is recorded in the Hampshire County Registry
of Deeds in Book 10550, Page 282, as amended by the Notice of Definitive Subdivision Approval –
Amendment issued by the Northampton Planning Board on March 22, 2012 and to be recorded in the
Hampshire County Registry of Deeds, in so far as the same is in force and effect and applicable to the
Premises.
The Premises are conveyed subject to the Definitive Subdivision Approval Conditions issued by
the Northampton Planning Board on February 23, 2012, which is recorded in the Hampshire County
Registry of Deeds in Book 10903, Page 330, as amended by the Notice of Definitive Subdivision
Approval Amendment issued by the Northampton Planning Board on March 22, 2012 and recorded in the
Hampshire County Registry of Deeds in Book 10903, Page 333, in so far as the same is in force and
effect and applicable to the Premises.
The Premises are conveyed subject to and together with the easements and restrictions contained
in the Declaration of Covenants, Restrictions, Maintenance and Easement Agreement dated October 8,
2004 and recorded in the Hampshire Registry of Deeds in Book 8024, Page 275, as amended by that
Amendment to the Declaration of Covenants, Restrictions, Maintenance and Easement Agreement dated
September 22, 2006 and recorded in the Hampshire County Registry of Deeds at Book 9016, Page 215 on
January 20, 2007, as restated and amended by the Consolidated Restatement and Amendment of
Declaration of Covenants, Restrictions, Maintenance and Easement Agreement dated April 17, 2008 and
recorded in the Hampshire County Registry of Deeds at Book 9457, Page 1, as amended by the
Supplemental Declaration dated as of November 2, 2009 and recorded in the Hampshire County Registry
of Deeds at Book 10019, Page 271, as further amended by the Second Supplemental Declaration dated as
of May 21, 2012 and recorded in the Hampshire County Registry of Deeds at Book 10921, Page 26, as
further amended by the Third Supplemental Declaration dated as of July 20, 2012 and recorded in the
Hampshire County Registry of Deeds at Book 10984, Page 128, as further amended by the Fourth
Supplemental Declaration dated as of October 24, 2013 and recorded in the Hampshire County Registry
of Deeds at Book 11503, Page 113, as further amended by the Fifth Supplemental Declaration dated as of
November 24, 2015 and recorded in the Hampshire County Registry of Deeds at Book 12141, Page 297,
as further amended by the Sixth Supplemental Declaration dated as of September 13, 2016 and recorded
in the Hampshire County Registry of Deeds at Book 12403, Page 297, and as further amended by the
Seventh Supplemental Declaration dated as of July 28, 2017 and recorded in the Hampshire County
Registry of Deeds at Book 12700, Page 281.
The Premises are conveyed subject to a Declaration of Covenants, Conditions and Restrictions
dated on or about the date hereof and recorded in the Hampshire County Registry of Deeds herewith.
The Premises are conveyed subject to and with the benefit of all easements, restrictions, rights
and encumbrances of record, in so far as the same are in force and effect and applicable to the Premises.
For the purpose of providing utility services to the Premises, including, but not limited to, water,
sewer, gas, electric, cable television, telecommunication service and the stormwater drainage system
(collectively referred to as the "Utility Services"), the Grantor hereby grants to the Grantee the perpetual
and non-exclusive right and easement to connect to each of the above-referenced services as said services
are now or may in the future be located in private or public ways, now or hereafter serving the Premises
(the "Utility Easements") in such locations as may be reasonably agreed upon by the Grantor and the
Grantee. This appurtenant right shall be subject to the compliance by the Grantee with the applicable
state and local ordinances, rules, and regulations for utility connections and services. The Grantee shall, in
the utilization of the easement rights hereunder, reasonably restore any areas disturbed in connection with
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any work undertaken in relation to the easements to its condition prior to Grantee's work. This
appurtenant rights shall include a permanent and non-exclusive easement and right of access over such
easement areas necessary to use, construct, maintain, repair, and replace any improvements constructed
within such areas by the Grantee, such rights to repair and replace any improvements constructed within
such areas shall be subject to the prior written notice and approval of the Grantor, which approval shall
not be unreasonably withheld; however, no such notice or approval shall be required in the event of an
emergency.
The conveyance of the Premises does not constitute the sale by the Grantor of all or substantially
all of its assets.
Signed as a sealed instrument as of this ____ day of __________, 20______.
HOSPITAL HILL DEVELOPMENT LLC
By: Massachusetts Development Finance Agency,
Its Manager
By:____________________________________
Name: Richard Henderson
Title: Executive Vice President for Real
Estate
COMMONWEALTH OF MASSACHUSETTS
Suffolk, ss.
On this ____ day of _________, ______, before me, the undersigned notary public, personally appeared
Richard Henderson, proved to me through satisfactory evidence of identification, which was (a current
driver’s license) (a current U.S. passport) (my personal knowledge of the identity of the principal), to be
the person whose name is signed on the preceding or attached document, and acknowledged to me that he
signed it voluntarily for its stated purpose, as Executive Vice President for Real Estate, Massachusetts
Development Finance Agency acting in its capacity as the manager of Hospital Hill Development LLC, a
Delaware limited liability company and as the voluntary act of the limited liability company.
____________________________________
(official signature and seal of notary)
My commission expires
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EXHIBIT A
to Release Deed
Legal Description
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EXHIBIT F-1
Form of Company’s Representation
Representation Certificate
The undersigned, as Seller under a Land Disposition Agreement (“Agreement”) dated as
of ________________, 200___ between Hospital Hill Development LLC (“Seller”) and
______________________________ hereby certify to Purchaser as follows:
Except as otherwise disclosed in writing to Purchaser, the representation and warranties
set forth in Section 10.1 of the Agreement are hereby reaffirmed as of the date hereof.
Seller’s liability hereunder shall be subject to the limitation set forth in the Agreement.
Dated as of this ___ day of _____________, 200___
Seller:
Hospital Hill Development LLC, a Delaware
limited liability company
By: Massachusetts Development Finance Agency,
its manager
By:_______________________________________
Name:
Title:
007-0088 007-0088 TCB-Lot 20 - Land Disposition Agreement v7.docx Exhibits
EXHIBIT F-2
Form of Purchaser’s Representation
Representation Certificate
The undersigned, as Purchaser under a Land Disposition Agreement (“Agreement”) dated
as of ________________, 200___ between Hospital Hill Development LLC (“Seller”) and
______________________________ (“Purchaser”) hereby certify to Seller as follows:
Except as otherwise disclosed in writing to Seller, the representation and warranties set
forth in Section 10.2 of the Agreement are hereby reaffirmed as of the date hereof.
Purchaser’s liability hereunder shall be subject to the limitation set forth in the
Agreement.
Dated as of this ___ day of _____________, 200___
Purchaser:
By:_______________________________________
Name:
Title:
007-0088 007-0088 TCB-Lot 20 - Land Disposition Agreement v7.docx Exhibits
EXHIBIT G
Design Guidelines: The Village at Hospital Hill
(Previously provided to the Purchaser)
007-0088 007-0088 TCB-Lot 20 - Land Disposition Agreement v7.docx Exhibits
EXHIBIT H
Residential Architectural Style Guide
(Previously provided to the Purchaser)
007-0088 007-0088 TCB-Lot 20 - Land Disposition Agreement v7.docx Exhibits
EXHIBIT I
Construction Mitigation Requirements of Section 61 Findings
Addenda
Vacant Land Parcel
Reciprocal Easement
Addenda
Vacant Land Parcel
Engagement Letter
Scott Allen, MAI
Executive Vice President | Valuation & Advisory
2410 North Forest Road, Suite 204
Getzville, NY 14068
M 716.523.0668
scott.allen@ngkf.com
www.ngkf.com/valuation
August 21, 2019
Ms. Rachana Crowley
The Community Builders
31 Trumbull Road
Northampton, MA 01060
RCrowley@tcbinc.org
Re: Real Estate Appraisal
North Commons at Village Hill
Lot 13-A
Northampton, MA 01060
B-19274
Dear Ms. Crowley:
We understand that you are in need of an appraisal of the site associated with your North Commons at Village
Hill project in Northampton. We are familiar with this development having previously issued market analysis work
for you in conjunction with the development advancement. The site was toured within the last year and for this
land analysis we are not anticipating the need for a new/additional site tour. The appraisal will apply what is
known as Lot 13-A, a site where the plans call for a 53 unit development.
The report will be used in conjunction with your submission and discussions with the State Allocating agency and
the application process.
We will need the following information:
• Signed authorization
• Site plan
• Purchase terms/agreement or contract
• Zoning that applies and status of what is needed to develop the project
• Confirmation of the specific property address
Cost and Timing
The cost is $1,800 and we will provide the report by September 20th, 2019 with value provided prior to that data.
If the terms are acceptable the attached acknowledgement can be signed and resubmitted as authorization to
begin the work effort. No retainer will be required, though payment is needed to be made subsequent to the
issuance of the report.
We look forward to working with you on this assignment and please feel free to contact the undersigned if there
are any questions or issues.
Respectfully,
NEWMARK KNIGHT FRANK LLC
M. Scott Allen, MAI
Executive Vice President | Valuation & Advisory
Schedule “A”
TERMS AND CONDITIONS
ATTACHED TO AND A PART OF THE ENGAGEMENT LETTER DATED AUGUST 21, 2019 TO PROVIDE
APPRAISAL SERVICES FOR THE COMMUNITY BUILDERS.
1. These Terms and Conditions are attached to and incorporated into the above referenced engagement letter as though fully set forth in
full therein, and together form the “Agreement.” Capitalized terms if not defined herein shall have the same meaning as defined in the
Agreement.
2. With respect to any appraisal report, use of or reliance on the appraisal by any party, regardless of whether the use or reliance is
authorized or known by the Firm, constitutes acceptance of these Terms and Conditions as well as acceptance of all other appraisal
statements, limiting conditions and assumptions stated in the Agreement and appraisal report.
3. It is assumed that there are no matters affecting the Property that would require the expertise of other professionals, such as engineers
or an environmental consultant, for Firm to provide the appraisal. If such additional expertise is required, it shall be provided by other
parties retained by Client at Client’s sole cost and expense.
4. Client acknowledges that the Firm is being retained as an independent contractor to provide the services described herein and nothing
in this Agreement shall be deemed to create any other relationship between Firm and Client, including but not limited to an agency
relationship. The parties neither intend nor have any expectation that any such relationship will arise as a matter of law or as a result of
this Agreement. This assignment shall be deemed concluded and the services hereunder completed upon delivery of the appraisal
described herein to Client.
5. All statements of fact contained in the appraisal report as a basis of the appraiser's analyses, opinions, and conclusions will be true and
correct to the best of the appraiser's actual knowledge and belief. The appraiser is entitled to, and shall rely upon the accuracy of
information and material furnished to the Firm by Client. Appraiser is also entitled to, and shall, rely on information provided by sources
upon which members of the appraisal profession typically rely and that are deemed to be reliable by members of that profession without
independent verification.
6. The Firm and the appraiser shall have no responsibility for legal matters, or questions or issues involving survey or title, soil or subsoil
conditions, engineering, zoning, buildability, environmental contamination, structural matters, construction defects, material or
methodology, or other similar technical matters with regarding the Property. Furthermore, the appraisal will not constitute a survey of the
Property.
7. The appraisal and the data and information gathered in its preparation (other than the confidential data and information provided by
Client) is and will remain, the property of the Firm. The Firm shall not violate the confidential nature of the appraiser-client relationship
by improperly disclosing any confidential information furnished by Client to the Firm. Notwithstanding the foregoing, the Firm and the
appraiser are authorized by Client to disclose all or any portion of the appraisal and appraisal report and the related data and information,
including confidential data and information provided by Client, to appropriate representatives of the Appraisal Institute if such disclosure
is required to comply with the Standards, Bylaws and Regulations of the Appraisal Institute, as well as, such disclosure as required by
law and regulations, including compliance with a subpoena and licensing authority regulatory inquiries. The Firm is also authorized to
include both confidential and non-confidential data assembled in the course of preparing the appraisal and which may be incorporated
into the appraisal report in a database controlled by the Firm for the aggregation of such data and information to produce analytics and
other metrics or products.
8. Unless specifically noted in the appraisal report, the appraisal will not take into consideration the possibility or probability of the existence
of asbestos, PCB transformers, other toxic, hazardous, or contaminated substances and/or underground storage tanks (hazardous
material) at on or in the Property, or the cost of encapsulation, removal or remediation thereof.
9. Client shall indemnify, defend (by counsel to be selected by Firm), protect, and hold Firm and Firm’s appraisers, agents, employees,
affiliates, representatives, successors and assigns (each a “Firm Party”), free and harmless from any and all claims, liabilities, losses,
penalties, fines, forfeitures, amounts paid in settlement, judgments, and all reasonable attorneys' fees and related litigation costs, fees
and expenses incurred by the any of such indemnitees, which result from (i) any failure by Client or Client’s agents or representatives to
provide Firm with complete and accurate information regarding the Property; (ii) any material breach by Client of the provisions of the
Agreement; (iii) if delivery of the appraisal to a third party is permitted by the Firm, Client providing an incomplete copy of the appraisal
to such third party; or (iv) arising from Client or Client’s agents or representatives providing a copy of the appraisal to a party not
authorized by the Firm to receive such copy.
10. In preparing the appraisal, it is possible that the appraiser will discover conflicting information. In that event, appraiser will utilize
information and data considered to be the most authoritative and for critical information will document the source. Information and data
referred to may include, but is not limited to, legal descriptions; physical street addresses; assessor parcel numbers; property history;
dimensions and areas of the site/land; dimensions and areas of the building improvements; physical unit counts; rent rolls; leases; lease
abstracts; income and expense data; and any other related data. Any material discrepancy
and/or error in any of the above data could have a substantial impact on the conclusions reported, and the Firm therefore reserves the
right to amend conclusions reported if the Firm is made aware of any such discrepancy and/or error.
11. The appraisal may not be used, included or referenced, in whole or in part, in any offering or other materials without the prior written
consent of the Firm, which consent may be conditioned upon the receipt by the Firm of an indemnity agreement, in form and content,
satisfactory to Firm and provided by an indemnitor satisfactory to Firm. Client agrees to pay the fees of the Firm’s legal counsel for review
of any materials which is the subject of the requested consent. Except as agreed by the Firm expressly in writing, the Firm disclaims
liability to any party other than Client.
12. The Firm shall not provide a copy of the appraisal to, or disclose the results of the appraisal to, any party other than Client, unless Client
authorizes same, except as provided in the Confidentiality Section of the ETHICS RULE of the Uniform Standards of Professional
Appraisal Practice (USPAP) or as otherwise required by law or regulations.
13. Client and any other identified Intended User should consider the appraisal as only one factor together with its own independent
considerations and underwriting guidelines in making any decision or investment or taking any action regarding the Property. Client
agrees that Firm shall not be responsible in any way for any decision of Client or any Intended User related to the Property or for the
advice or services provided by any other advisors or contractors.
14. Unless otherwise stated in this Agreement, Client agrees that the services pursuant to this Agreement shall not include participation in
or preparation for, or attendance at, any legal, judicial, administrative, or arbitration proceeding relating to this assignment. In the event
the Firm or any Firm Party is required, whether through the service of a subpoena or otherwise, to produce documents or participate in
or prepare for any discovery, testimony or attendance, relating to the appraisal or this assignment, where the Firm or Firm Party is not a
party to the action or proceedings involved, Client agrees to reimburse expenses incurred by the Firm or Firm Party, including attorney’s
fees, in responding to such subpoena or other legal process and compensate the Firm therefor based upon the appraiser’s prevailing
hourly or daily rate for providing services as an expert consultant or witness.
15. Except as expressly provided herein, Firm makes no representations or warranties to Client or to any other person or entity with respect
to the appraisal and the services to be provided by Firm under this Agreement. To the maximum extent permitted under applicable law,
in no event will the Firm or any Firm Party be liable to Client or any third party (regardless of whether such party’s claimed use or reliance
on the appraisal was authorized by the Firm or a Firm Party) for any indirect, special, exemplary, incidental, or consequential damages
(including loss of profits) arising from or relating to this Agreement or the appraisal, even if such party knew or should have known of the
possibility of, or could reasonably have prevented, such damages. In no event shall the total liability of the Firm or any Firm Party to Client
or any third party (regardless of whether such party’s claimed use or reliance on the appraisal was authorized by the Firm or a Firm Party)
arising from or relating to this Agreement or the appraisal, whether based on tort, contract, or any other legal theory, exceed the amount
of fees paid to the Firm for the appraisal and the services described herein. Legal claims or causes of action relating to the appraisal are
not assignable, except: (i) as the result of a merger, consolidation, sale or purchase of a legal entity, (ii) with regard to the collection of a
bona fide existing debt for services but then only to the extent of the total compensation for the appraisal plus reasonable interest, or
(iii) in the case of an appraisal performed in connection with the origination of a mortgage loan, as part of the transfer or sale of the
mortgage before an event of default on the mortgage or note or its legal equivalent.
16. Federal banking regulations require banks and other lending institutions to engage appraisers where FIRREA compliant appraisals must
be used in connection with mortgage loans or other transactions involving federally regulated lending institutions. In view of that
requirement, the appraisal may not be accepted by a federally regulated financial institution.
17. In the event Client fails to make payments of any fees or sums when due and payable under this Agreement; then from the date due and
payable until paid, the amount due and payable shall bear interest at the maximum rate permitted under the laws of the state in which
the Property is located. If the Firm is required to undertake collection efforts including institution of legal action against Client relating to
the Agreement, the Firm shall be entitled to recover attorney's fees, litigation expenses, and costs from Client.
18. To the extent permitted under applicable law, any legal action or lawsuit or other proceeding by Client or any Intended User of the appraisal
against Firm or a Firm Party whether based in contract, tort, warranty, indemnity or otherwise, relating to the appraisal shall be
commenced within two (2) years from the date of delivery of the appraisal to the claimant in such action or proceeding, unless the
applicable law provides for a shorter period, and any such claimant waives the right to a jury in any such legal action or lawsuit or other
proceeding. Notwithstanding the state of domicile or residency of either party to this Agreement, this Agreement shall be governed and
construed under the laws of the state in which the Property is located, and venue for any action or proceeding arising out of this
Agreement shall be deemed proper only in the court of competent jurisdiction located in the state in which the Property is located.
19. Throughout the performance of services under this Agreement, the Firm shall maintain at is sole cost and expense the following
insurance:
(a) Workers’ Compensation, so as to provide statutory benefits as required by the laws of each state within the United States in which
the Firm’s services are being provided, and Employer’s Liability insurance with limits of liability of no less than $1,000,000 each
accident, $1,000,000 disease each employee and $1,000,000 disease policy limit
covering all employees of the Firm engaged in the performance of such services.
(b) Fidelity insurance or bond with a limit of not less than $1,000,000 to insure the Firm against loss of its or Client’s assets caused
from the dishonest acts of the Firm’s employees.
(c) Professional Liability insurance with a limit of liability of not less than $15,000,000 each claim and $15,000,000 aggregate, which
limits may be provided by a combination of primary and excess policies.
(d) Commercial General Liability insurance providing coverage against damages due to bodily injury (including death), property damage
and personal and advertising injury arising in connection with the Firm’s services provided under this Agreement, which insurance
coverage shall: (i) be occurrence-based; (ii) provide limits of liability in an amount not less than $1,000,000 each occurrence and
$1,000,000 aggregate (including excess and/or umbrella limits), (iii) include at least those coverages generally included in the most
current ISO Commercial General Liability insurance policy form (or its equivalent); and (iv) include Client, and such other persons or
entities as Client may identify in writing, as additional insureds solely with regard to claims arising out of this Agreement.
(e) Commercial automobile liability for owned, hired and non-owned motor vehicles, with a $1,000,000 combined single limit.
Addenda
Vacant Land Parcel
Qualifications
1
M. SCOTT ALLEN, MAI
Executive Vice President
Newmark Knight Frank
North Forest Road, Suite 204
Amherst, NY 14068
scott.allen@ngkf.com
T 716.523.0668
Years of Experience
33 Years
Areas of Specialization
Valuation & Advisory
Market Analysis
Multifamily
Land
HUD FHA/MAP
LIHTC Appraisals and Market studies
Professional Background
Scott Allen, MAI, joined Newmark Knight Frank Valuation & Advisory in
2019 as executive vice president of the Buffalo office. A 33-year industry
veteran, Mr. Allen has prepared valuations and market analyses across
a broad range of property types that includes residential housing, low-
income housing projects, apartments, student apartments, historic
preservation projects, senior housing projects, commercial property and
vacant land.
Over the course of his career, Mr. Allen has focused on producing quality
market analyses and appraisal work in a timely manner for mortgage
lenders, corporations, non-profits, tax credit syndicators, private
developers/investors, and government entities including HUD, Rural
Development, and Fannie Mae/Freddie Mac.
Mr. Allen began his career as a certified general appraiser and currently
focuses his work efforts on market analysis and appraisal work related to
multifamily and residential housing. Prior to joining Newmark Knight
Frank, Mr. Allen was principal and partner of GAR Associates, a
commercial real estate and advisory firm established in 1961.
Professional Affiliations
Member, National Council of Housing Market Analysts (NCHMA)
Board of Directors, National Housing & Rehabilitation Association (NH
& RA)
Member, Eastern & Western Lenders Association (HUD Lenders)
Member, New York State Association For Affordable Housing
(NYSAFAH)
Licenses and Designations
Designated member, Appraisal Institute (MAI)
Certified general real property appraiser, states of Arizona,
Connecticut, Maryland, Massachusetts, New Jersey, New York, North
Carolina, Pennsylvania, South Carolina, Vermont, and Virginia.
Approved Market Analyst by New York State HCR and ADOH
(Arizona Department of Housing)
HUD MAP appraisal and market analysis
Education
Mr. Allen earned his Bachelor of Arts degree in materials and logistics
management from Michigan State University’s College of Business in
1986. Mr. Allen is currently certified by the Appraisal Institute’s voluntary
program of continuing education for its designated members, and has
been an approved instructor for the HUD MAP Underwriting Training
Program since 2013.