MEMORANDUM OF AGREEMENT BY AND AMONG FOXBORO REALTY ASSOCIATES LLC MASSACHUSETTS BAY TRANSPORTATION AUTHORITY ‘AND [MASSACHUSETTS DEPARTMENT OF TRANSPORTATION FOR FOXBOROUGH COMMUTER RAIL SERVICE, ‘This Memorandum of Agreement *Agtesment” is dated as of lanoary 5, 2015 by and among the Massachusetts Bay Transportation Authority (hereinate refered toes the “MBTA"), ‘8 body politic and corporate snd apolitical subdivision ofthe Commonviealth of Massachusets exisling pursuant tothe Massachusets General Laws, Chapter 161A, as amended, with ofices at ‘Ten Park Plaza, Boston, Massachusetts (2116, the Massachusetts Department of Transportation (hereinafter referred 0 as "MassDOT"), a ody politic and corporate and a politcal subdivision ofthe Commonwealth of Massachusets existing pursuant othe Massachusetts Generel Laws, (Chapter 6C, as amended, with offices at Ten Park Plaza, Boston, Massachusetts 02116, and Foxboro Realty Associates LLC (hereinafter refered to s“FRAL), a Delaware limited lability ‘company having an address at One Patriot Place, Foxborough, Massachusetts 02035. (WITNESSETH THAT: WHEREAS, MassDOT, the MBTA and FRAL are interested in working together to improve freight and commute rail service along the Framingham Secondary railroad line (the “Line”? including to the existing rail station (the "Sttion”) adjacent to Gillette Stadium (the Stadium”) in Foxborough, Massachasets as shawn on Exhibit A and WHEREAS, the MBTA is inthe process of aoquiring the Line ffom CSX Transportation, Inc. (CSX"), which will eain an easementlcense to operate over the Line; and WHEREAS, prior studies conducted in 2010 and 2011 have indicated a need for addtional commuter rail service to this growing region, and demand for such sevice has ‘continued to grow in this underserved areaof the southern Metrowest region, including Foxborough and Wrentham; and WHEREAS, the Line is presenly in need of tack and signal upgrades to improve fcight and passenger service (the “Improvements”, and WHEREAS, FRAL is willing to assis in addressing these needs by: () funding the costs associated with the development of design plans for the Improvements along the Line from Walpole Station to the Station; and (i) performing routine isintensnce within the Station area; subject tothe terms, conditions and limitations st forth inthis Agreement; and WHEREAS, (i poblic parking capacity is constrained at exiting commuter parking ‘aciities proximate to stations slong the Line and (i) current MBBT commater rail layover Iaciies systemwide area or near capacity today and these constraints are expected 1 becomesore acute with further regional growth, the introduction of new technologies and with future fet acquisitions; and WHEREAS, FRAL is willing fo assis the MISA in its eorts to address these existing capacity constraints ina variety of ways, by () establishing and maintaining a commuter parking area available to the public fora fee within FRAL's existing parking lots (une “Commer Parking Are"); (i) pledging to donate tothe MBTA a substantial share ofthe revenue generated by the new Commuter Parking Avra which new revere may heed hy the MITA 10 help adress these constants, and (i) conveying tothe MBA (at no cost to the MTA) ‘pproximately five (5) acres of land proximate tothe Staton for potential future equipment Morage (the “Pore Storage Area”) (as shown on the plan atached Exhibit Band WHEREAS, MassDOT, the MBTA and FRAL wish to set for certain agreements with respect fo the improvement oF service along the Line and 1 the Staton NOW, THEREFORE, in consideration of the foregoing and their respective payment and/or performance obligations set fot below, and for other good and valuable consideration, the roeipt and sulfcieney of which is horeby acknowledged the putes hereby age as follows: ARTICLE L-RESPONSIBILITIES OF THE PARTIES. A. PROJECT OBJECTIVES ‘The Parties” shared goal is wo maximize the use of existing and available infrastructure in ‘order to improve freight and commuter al service along the Line, including the implementation ‘of regular commuter ral service a the Station, Activities tobe undertaken under the terms of ‘his Agreement include the MBTA's responsibilities, MassDOT's responsibilities and FRAL's responsibilities and joint responsbilies as set forth immediately below. All parties will continue to cooperie with each other to carryout the intent of this Agreement. Each party will execute any and all aitional necessary and appropriate documeats for implementing the Service in accordance with this Agreement 1B. FRAL'S RESPONSIBILITIES 1, FRAL agrees tts sole cost ancl expense, to establish, operate nd maintain the Commuter Parking Area within FRAL'S existing parking lots for the «uration of scheduled service tothe Station, ‘The Commuter Parking Area shal include not less than five hundred (500) parking spaces the ultimate location and configuration to be determined ia FRAL's sole discretion, as may be adjusted from time o time. FRAL shall bo solely responsible for the ‘Consmator Parking Area which shall be open fr commuter parking ‘commensurate with the start and dation of Scheduled service tothe Station, subject to FRAL'S roles and regulations. PRAAL may impose a commercially reasonable fe for commuter parking within the Commuter Parking Area. The Parties agre that the fes assessed by the MBIA at other proximate commuter al stations shall bea significant cto in determining whether the fees Jmposed by FRAL for parking within the Commuter Parking Area ae commercially reasonable2, For the duration of scheduled service othe Station, FRAL agrees to make an ‘nna eontibution tothe MISTA to asit the MBTA in is efforts to adress ‘capacity constraints and improve service by paying the MBSTA on an annual basis, an amount equal o ninety-eight percent (98%) of any net parking proceeds generated by FRAL ffom parking within the Commuter Parking Area fafter reimbursement of FRAL'S costs to operate the Commuter Parking Area RAL shall maintain, o ease to be maintained, accurate records of al costs Inoured and rovensos generated in connection with the Commuter Pking ‘Area and shall allow the MBTA or its representatives, at any reasonable time ‘and upon reasonable notice, to inspect, copy’ and audit such records. 3. FRAL shall donate the MBTA the land comprising the Future Storage Area e ‘time and upon such conditions asso forth below. Upon execution of this ‘Agreement, FRAL shall make the Future Storage Area available for reasonable inspection by the MITA from time to time. Upon receipt of the MBTA'S Notice (as defined hereinafter), FRAL shall diligently proceed to convey all or that portion ofthe Future Storage Are infil in the METS Notice tothe MBIA at no cast to the MBTA, subject to approval by necesary authorities. ‘Within sinty (60) days of receipt of the MBTA's Notice (as such period may be reasonably extended), FRAL shall dliverto the MBSA for recording an ‘executed decd tothe Future Storage Area. Upon the conveyance tothe MBTA, FRAL shal ensure the Future Storage Area is fee and clear of any improvements, unless otherwise agreed to by the MTBA. Any use ofthe Future Storage Area by the MBTA, and the Scope, timing and construction of any improvement thereon, shall be dterasined by the MBTA, in ts sole diseretion. FRAL may, at ny time prio 1o a conveyance of the Future ‘Storage Are, propose tothe MBTA an altemate locaton or locations forthe Future Storage Area in place ofthe general location shown on ExhibitB. Any such alternate location) must be comparable to the location for the Future Storage Area shown on Exhibit, relative to parcel siz, utility for MBTA ‘operations and property’ veluation, as determined solely by the MBTA, The [MBIA shall, ints sole diseretion, determine whether to sclect such alterate location(s) a the Future Storage Area or whether to select the original location ideniied on Exhibit B. 4, FRAL shal tits sole cost and expense, perform or cause tobe performed routine maintenance aotivtes within the area of the tation fora period of| twenty (20) yeas from commencement ofthe Service, provided that FRAL. Shall cease to perform or cause tobe performed such ralntenance activi 1 {he MBTA ceases to schedule regular commuter ral service tothe Station during the FRAL Maintenance Period (*ERAL's Maintenance Period”) “Temporary suspensions of service shall not relieve FRAL ofthis maintenance obligation, Routine maintenance aetvitis shall consist of snow removal, regular sweeping, trash removal, replacing light bulbs and similar minor maintenance activities that may be required on a daity basis within the area of| the Station, Routine maintenance activities shall not include any substantive repairs othe Staton o is appurtenances (eg painting, repair or replacementof wiring, itures,stuctres, or surfaces within the Station ares) for which the MBA shall remain solely responsible. Prior to the commencement of FRAL's routine maintenance activites within the Station area, FRAL shall provide the MBTA with a certificate or certificates of insurance providing evidence of ability insurance coverage as may be required by the MBTA, naming the MBTA as an additional insured. FRAL shall renew and replace any expired cortiinte, evideneing the insrance ofthe activities heeunder. FRAL shal also ensure that any personnel undertaking maintenance activities within the Station area shall have undergone any and all necessary traning to undertake this ‘work, FRAL shall nt be responsible for damage to the Station area in connection ‘vith FRAL'S maintenance responsibilities hereunder. ‘5, ‘To facia the implementation ofthe Improvements to the Line, FRAL shall submit drawings and specifications to the MBTA for review and approval in ‘accordance with the schedule set forth in Anticle I below. FRAL shal provide all documentation to the MITA tha is reasonably necessary for the MBTA to sock and obtain all necessary permits and approvals to construct the Improvements. FRAL shall cooperate inthe MBTA's efforts fo permit and construct the Improvements. (C. MBIW’S AND MASSDOT'S RESPONSIBILITIES |, The MBTA may, at any time prior tthe fit anniversary ofthe commencement af Service the Staton, provide writen notification to FRAL ‘ofits devision to take tlle tothe property shown on ExhibitB as che Future ‘Storage Area or any alternative locations) identified by FRAL and approved by the MBTA (the “MIITA's Notice”), The flue by the MBTA to provide the MBTA’s Notice timely to FRAL shall not relieve FRAL ofits obligation to convey the Future Sorage Area fo the MBTA until FRAL has sought, in ‘writing, final confirmation fom the MBTA of ts decision to decline acceptance ofthis property and ether che MBTA expresly declines this property or thity’ (30) days elapse from the mailing ofthis notice without a Fesponse from the MBTA, If, in response to FRAL's request for final confirmation, the MBBTA responds within thirty days indicating ts decision to take ttle to the Puture Storage Area such response shall serve as the MBTA's Nate, 2. ‘The MBTA shall cooperate with FRAL in the preparation ofthe final design plans for the improvements. Upon receipt ofall necessary materials fom RAL in connection with the Improvements the MITA shall diligently proceed to prepare permit applications an, ultimately, to construct the Improvements the Line in accordance with aplicable law.ARTICLE IL. ANTICIPATED SCHEDULE, RAL anid MBTA anticipate scheduled service tothe Staton commencing in December 2016 based upon the schedule for design, permitting and constrtion ofthe Improvements set forth on Exhibit. The parties shall keep cach ather easonablyapprited of ay adjustments andor delays to the ancipted schedule nd reasonably informed ofthe status oftheir respective obligations with respect tothe Improvements, ARTICLE IIL.~ GENERAL PROVISIONS eis understood and agreed that the MBTA, MassDOT and FRAL are bound by the terms and conditions of this Agreement, [uring the term ofthis Agreement the scope of regulary scheduled service to the Station is substantially revised or other substantial changes are made in the seope or character ofthe work or obligations to be performed hereunder, sch revisions or changes and necessary adjustments willbe made by written “amendment to tis Agreement exceuted by both parties Upon request, al documents, materials and data as well as sketches, diagrams ‘and calculations prepared under this Agreement in connection with the Improvements stall be made available by FRAL for eview by the MBTA.. ‘Sulgjetto the provisions hereof, either the MB'TA and MassDOT such partes ‘acting collectively) or FRAL may terminate this Agreement ithe other party isin default of its material obligations hereunder and such default continues for more than 30 days ater written notice to the eter party (or such longer petiod as may reasonably be required to cure such defiant provided the lfauling party has promptly commenced and is dligetly pursuing the cure), ‘The MBTA and MassDOT may aesept any cure performed by PRAL's lender(s) or equity partner(s) ifeny, and, if accepted, shall afford such parties sch time as may be reasonably need to take contol ofthe Project and effet such cue prior t terminating this Agreement as aforesaid. The partes also agree that prior to any such tenmination, the partis will meet in person land use good faith efforts to discuss and resolve any dispute between them. {In peeforming its obligations under this Agreement, (| FRAL shall not diseriminate against any employee or applicant for employment because of | ‘ace, color, gender, national origi, ancestry religion, disability, ae, sexual corintation, genetic status, gender identity, veteran status, or other protected ‘ategory in accordance with applicable state andlor federal lays with regard to any aspect of employment and employment practices, inching but not limited to recruitment, hting, wage and salary administration, promotion, discipline, termination, ans, ayo, rezall and traning: and (i) PRAL shall, take affimative setions to ensure that applicants are employed, and that employees are treated during their employment, without regard to their rae,color genetic status, ender identity, veteran status, or other protected category in accordance with applicable state andr federal law. 6. Nomember of or delegate to the Congress ofthe United States sall be ‘admitted t any share or part of this Agreement orto any benefit arising there from. 7. Nomember office, or employee ofthe MBTA or MassDOT, or any director, ‘office, member or employee during hisher tenure oe for one year thereafter, shall have any interest, director indirect, inthis Agreement or the proceeds thereof. 8, This Agreement shall be binding upon and inure to the benefit ofthe parties Fhereto and their successors and assigns. 9, Neither party hereto shall be considered in default ithe performance of any such obligation is prevented or delayed de to no fault of such party, but the parties shall use reasonable efforts fo minimize the length and exteat of any ‘uch obstacle to performance. 10, This Agreement is intended to bea binding agreement, enforceable as such, ‘which wil be interpreted in accordance with the laws of the Commonwealth fof Massachusetts, In the event that any provision of this Agreement shall be ‘determined tobe invalid unenforceable under applicable aw such provision shall be construed or applied in such manner as will permit, ‘enforcement a8 nearly as possible to the intent of such provision, and such ‘ancnforceability shall not affet the continuing validity and enforceability of “anyother provisions ofthis Agreement 1. No board member, officer, director, member, employee or agent of the MBTA, MassDOT, or FRAL shall have any personal liability under this ‘Agreement, and n0 party shall be subject o punitive or consequent ‘damages 12, This Agreement may be exocuted in soverl counterparts, and/or by execution ‘of counterpar signature pages which may be attached toon or more ‘counterpart, and al so executed shal constitute one Agreement binding on all ‘ofthe parties hereto, nowwithstnding that al of the parties are not signatory to ‘the original or the same counterpart. I addition, any counterpart signature ‘page may be executed by any party wheresoever such party is locate, and ‘may be delivered by telephone facsimile or e-mail transmission, and any such facsimile or e-mail tansmited signature pages may be attached to one of ‘more counterparts ofthis Agreement, and such faxed or e-mailed signatures) shall have the same fae and effect, and be as binding. as orginal signatures ‘executed and delivered in person. 13, Time is ofthe essence ofthis Agreement,14, The META and MassDOT agree that FRAT may'assig tis Agreement to any afilite of FRAL, 15, PRAL and the MBIA hereby indemnify and hold harmless cash other trom any ‘and all costs, loss, expenses, claims or lability arising out of any acient, injury or damage whatsoever caused to any person, oe to the property of any petson, occuring in o about the Staton but only to the extent such sesiden injury, damate, loss, claim, demand, sit, cost, expense a Hability isnot ‘caused by the negligence or intentional misconduct of the other party ots agents, employees, or contactors or the other party’ violation of any ofthe terms ofthis Agreement, ARTICLE IV, - STATION NAME AND OPERATION |The MBTA and MassDOT agree that the Station will be named “Patt Place - Foxborough” which name shall no be changed without the prior writen ‘approval ofthe META and FRAL, its successors andr assigns daring the FFRAL Maintenance Period. After the FRAL Maintenance Period ends, but 0 Jong asthe remainder ofthe obligations set fort in this if and to the extent thatthe MBA is required by statute to seek to sel, Heense, or rent naming or sponsorship rights forthe Staton, the MBIA shall be permitted to seek to sell ‘naming or sponsorship righ to the Station consistent with ts statutory ‘obligations. FRAL shall be given the opportunity to object othe sale oF ‘ming r sponsorship rights to any party. In the event that FRALL so objects, FRAL shall have the igh o secure such “sponsorship” rights fr ise instead by providing valuc tothe MBTA equal to the valve thatthe party to whom [FRAL objects had proposed to give to secure such naming or sponsorship rights 2, "The MBTA and MassDOT agre that regular commuter rl sevice provided long the Framingham Secondary linet an from the Station will be scheduled in accordance withthe MBIA service delivery policy and implemented consistent wi applicable level-boarding requitements. The [MBTA reserve the right to alter or just regularly scheduled service atts sole discretion. 3. For the duration of regularly scheduled service tothe Station, the partes agree to cooperate in an effort to ensure thatthe MTBA's use ofthe Station and Future Storage Area including the scheduling of service tothe Station, and PRAT‘ use ofits remaining property, including the Stadium, do not lueasonably interfere withthe other party’ business operations. ARTICLE V- NOTICES. ‘Any required writen notice shal be sent 0:[1 the MBTA: “Massachusets Bay Transporation Authority “Ten Pak Plaza Boston, MA 02116-3974 Attention: Beverly A. Scott, Ph.D, General Manager ‘Telephone: (617) 222-3106 nail: becom com with copies to Massachusetts Bay Transporation Authority “Ten Park Plaza Boston, MA.02116-3974 ‘Atetion: Paige Scott Reed, General Counsel “Telephone: (837) 368-8770, E-mail: peed @mbia com and ‘Massachusetts Bay Transporation Authority Room 5750, "Ten Park Plaza Boston, MA 02116-3974 ‘Adtention: Mark Boyle, Director of Real Estate ‘Telephone: (617) 222-3255 ‘E-mail: mbovle@mbtacom Ite MassDOT: “Massachusetts Department of Transportation ‘Ten Park Plaza Boston, MA 02116-3974 Attention: Secretary of Transportation & Chief Executive Officer Telephone: (887) 368-8891 with copy to: “Massachusetts Department of Transportation “Ten Park Plaza Boston, MA 02116-3974 Attention: Paige Scott Reed, General Counsel ‘Telephone: (857) 368-8770 Email: psreedimbua.comIto FRAL: Foxboro Realty Associates LLC One Patriot Place Foxborough, MA 02035 Attention’ James E. Cober, Es. ‘Telephone: (508) 384-4341 E-mail jime“athekrafigroup.com with copy to Goulston & Storrs PC 400 Atlantic Avenue Boston, MA 02110 “Adention: Pott L, Tamm, Es. ‘Telephone: (617) 574-7891 Em [Signatures areon the next page]IN WITNESS WHEREOF, the MBTA and FRAL have caused this Agreement to be executed on their behall by ther duly authorized officer or representative as ofthe date first noted above MBTA/MassDOT: Massachusetts Bay Transportation Authority? Approved aso Form: Massachusets Department of Transportation by A i th Nano baer A ot: Pad War Pe Sat Reed Title: MBTA General Manager! ‘Title: General Counsel MassDOT Rail and Transit Administrator PRAL: Foxboro Realty Associates LLC <= ‘Title: Senior Vice President~Finance, Administration and Operations of Exhibits Exhibit A Plan Showing Framingham Secondary Line Exhibit Aerial Plan Showing Existing Station Location and Future Storage Area Exhibit Schedule of Milestone Dates to Complete Improvements