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HomeMy WebLinkAboutLegal Document - 146 MAIN STREET 10/19/2015 WSTARR Emily S.Starr PC Starr Vander Linden LLp Charles E.Vander Linden 625 main street -SANDER LINDEN Laura SilverTraiger Fitchburg, 01420 tel 978-345-6-6 791 A T T O R N E Y S A T L A W Cynthia A.Brown fax 978-345-6935 Seven State Street Worcester,MA 01609 tel 508-754-8882 fax 508-754-3639 October 15, 2015 Albert P. Manzi III, Chairman �.' R_ North Andover Zoning Board of Appeals Building 20, Suite 2035 _b 1600 Osgood Street North Andover, MA 01845 BOARD PPEAL RE: Appeal filed by Gregory Smith First Hearing Date:. October 13, 2015 Dear Mr. Manzi: Please be advised that I represent the Trustees of the Sutton Pond Condominium. Although Sutton Pond is not a party to the proceeding before the North Andover Zoning Board of Appeals ("ZBA"), it has an interest in the matter. Sutton Pond hereby formally requests that the ZBA deny the appeal that has been filed by Gregory Smith. Sutton Pond believes that the appeal must be rejected based upon both the facts and the law. As I indicated at your last hearing,Mr. Smith has provided information to the ZBA that Sutton Pond believes to be both incomplete and misleading. Sutton Pond is convinced that the Building Inspector has carefully reviewed this matter and that his decision should be upheld. The Building Inspector is the Zoning Enforcement Officer and his decision is entitled to considerable deference. I. LEGAL ISSUES Three legal issues deserve attention: (1)the statutory limits on the jurisdiction of the ZBA and the scope of its authority to grant the type of relief sought by Gregory Smith; (2) the 10- year statute of limitations for any claims seeking to alter items were constructed pursuant to a special permit; and (3)the deference to be provided to the investigations and decisions of the Zoning Enforcement Officer. Consideration of these legal issues requires that the decision of the Building Inspector be upheld. The issue of the jurisdiction and authority of the ZBA was raised at the hearing on October 13, 2015. The complaints filed with the Building Inspector range far beyond his jurisdiction and authority. Similarly,the evidence presented to the ZBA included everything from Albert P. Manzi III, Chairman North Andover Zoning Board of Appeals October 15, 2015 Page 2 alleged board of health issues, conservation commission issues and permits over which the Building Inspector has no authority. The Building Inspector did not have jurisdiction to address many of the issues and the ZBA simply does not have the authority to grant the relief requested by Gregory Smith. Mr. Smith may be unhappy that other town officials and boards have not agreed with his allegations and accusations, but that does not enable him to obtain a remedy from the Building Inspector. An appeal of a decision of the Building Inspector is limited to actions taken related to zoning matters. Chapter 40A, Section 8 of the Massachusetts General Laws expressly provides that appeals are limited to alleged zoning violations, i.e. alleged violations"of this chapter(40A) or any ordinance or by-law adopted thereunder." In sum,the ZBA does not have the jurisdiction or authority to grant the requested relief. Second, to the extent that the appeal is based upon alleged violations of the 1992 special permit, any such appeal is barred by the provisions of Chapter 40A, Section 7. The statute provides that any attempt to compel the removal, alteration or relocation of any structure based upon alleged violations of"the conditions of any variance or special permit"must be commenced within ten years after"the commencement of the alleged violation." All parties agree that the configuration of the sewer connection was installed in the early 1990s, shortly before the Town of North Andover became the first tenant in the building. Thus, any attempt "to compel the removal, alteration or relocation"of that system or any of its components based upon an alleged violation of a condition of the 1992 special permit is barred by the statue of limitations. The final legal issue is the matter of giving proper deference to the investigation and decision of the Building Inspector. The Building Inspector is the Zoning Enforcement Officer in North Andover. Where he has conducted an actual investigation of the facts and has made a determination based upon that investigation, his decision must be upheld if it has a rational basis and, in the exercise of his discretion as the Zoning Enforcement Officer, he has made a reasonable decision. II. FACTUAL ISSUES Sutton Pond disputes virtually every claim made by Gregory Smith in this proceeding. Smith initiated litigation against Sutton Pond in 1999, which resulted in a Court Order dated August 4, 2004 declaring that a Settlement Agreement was the final Judgment in the case. The implementation of the Judgment was the subject of an arbitration hearing. The arbitrator issued a decision on October 18, 2005 and two later decisions on December 6, 2005 and May 12, 2006 to clarify his initial decision. Sutton Pond has taken all reasonable and necessary steps to implement the Judgment and the decisions of the arbitrator. To the extent that any work has not been fully completed, it is only because Gregory Smith has refused to allow access to his building or has placed locks on the pump shed, preventing access by the contractor retained by Sutton Pond to inspect and maintain the pumps and other components. Albert P. Manzi III, Chairman North Andover Zoning Board of Appeals October 15, 2015 Page 3 Sutton Pond has no intention of attempting to re-litigate in this proceeding before the ZBA the issues that were previously raised in the litigation in the Essex Superior Court and in arbitration. Nonetheless, since Gregory Smith has provided incomplete and misleading information regarding the history of the dispute between the parties, Sutton Pond is providing the following documents to the ZBA as a means of providing a more complete and accurate history of the matter: 1. Denial on August 30, 2002 by D. Robert Nicetta,North Andover Building Commissioner and Zoning Enforcement Officer, of enforcement request submitted by Gregory Smith. 2. Decision on June 14, 2004 by the North Andover Zoning Board of Appeals to uphold the decision of the Building Inspector and to deny the enforcement request sought by Gregory Smith. (Smith litigated the same issues before the ZBA in 2004 and his appeal of the decision of the Building Inspector was denied.) 3. Court Order dated August 4, 2004, with Settlement Agreement attached; 4 Decisions by Arbitrator: October 18, 2005; December 6, 2005; May 12, 2006; 5. February 10, 2006 correspondence from Attorney Charles Perkins to Gregory Smith regarding non-compliance by Smith with arbitration order. 6. September 7, 2012 certification by Kevin P. Klein, professional engineer at Norfolk Ram, confirming that the "pumping system has been engineered and designed to discharge to the municipal system in accordance with the Town's requirements and good engineering practice." Mr. Klein also noted that some additional components for heating and ventilation had been installed in the shed, but the installation could not be completed until access was provided to the electrical panel in Smith's building. That access was never provided. 7. July 22, 2014 and July 24, 2014 correspondence from Vander Linden(counsel for Sutton Pond)to Kutrubes (counsel for Smith) confirming that Smith had taken possession of the pumps and related equipment by locking the pump shed and notifying Smith that, as a result of his conduct, "Any obligation of the [Sutton Pond] Trustees to inspect or maintain the pumps has been terminated, waived and released..." In addition to the facts set forth in the above-described documents, Sutton Pond requests that the ZBA give attention to the following facts as it reviews this matter: A. The first tenant in the Smith building at 146 Main Street after the sewer pumps and other components were installed was the Town of North Andover. The Town must have approved the construction before it took occupancy and have issued a proper occupancy permit for the property at that time. Albert P. Manzi III, Chairman North Andover Zoning Board of Appeals October 15, 2015 Page 4 B. Smith purchased the property in 1998 and must have obtained an occupancy permit for the building, since it has been continuously occupied since that time. C. A comprehensive settlement between Smith and Sutton Pond in the form of a Settlement Agreement, which was adopted by the Essex Superior Court as the Court Judgment on August 4, 2004, includes detailed provisions regarding the sewer system and its components. That Court Judgment provides that if either party alleges that there is a violation,the remedy is to pursue the matter in arbitration. D. The certification by Kevin P. Klein, Professional Engineer at Norfolk Ram, indicates that the "pumping system has been engineered and designed to discharge to the municipal system in accordance with the Town's requirements and good engineering practice." (Exhibit 6). E. Gregory Smith, by his own conduct,has interfered with the inspection and maintenance of the pumps and related equipment by the engineers who were under contract to inspect and maintain the pumps. By his conduct, he has waived any further claims against Sutton Pond and released Sutton Pond from any further obligations with regard to the sewer system and its components. (Exhibit 7). In sum, based upon both the law and the facts, the appeal filed by Gregory Smith must be denied. The Building Inspector indicated at the hearing that he had conferred with Town Counsel regarding these matters and that the letters that he has provided to Gregory Smith are based upon the advice of counsel. To the extent that the ZBA deems it appropriate to confer further with Town Counsel regarding the legal issues in this case, Sutton Pond requests that such consultation take place. Thank you for giving this matter your attention. If you need any additional information from Sutton Pond,please contact me. S' cerel , �w i Charles-E—Vander Linden Writer's Direct Email: cvanderlinden(a)starrvanderl inden.com CV jl P^c.I—Pm42015-Sm -Pump h--Mane I-10-15-2015.wpi cc: Gerald Brown, Building Inspector Sutton Pond Trustees Enclosures: As Described Above Town of North Andover tAa oTH q OT Office of the Building Department Commuidty Developmenk and Services Division 27 Charles Street o North Aridover,Massachusetts 01845 �ryss gcHUs D. Robert Nice T.ele-Dhone (978) 685-954'1 Building CO%16'nis5 toner Fax-(978) August 30, 2002 Mr. Gregory P. Smith,AZA GSD Associates 148 Main Street,Building"A" North Andover,MA 01845 RE: 1 148 Main Street,Building"A" (North Andover,Mk Dear M. Smith: Your correspondence of July 24,2002 requests enforcement as it relates to the Sutton Pond Condominium Propertyl obligation to replace and maintain sewer pumps and sewer lines pertaining to Building"A". I stated my opinion,on this matter,to your Attorney Mark 1 Sampson of Devine,Millimet&Branch by mail on July 13,2002. Enclosed for your review is a copy of Attorney Sampson's query and my response. I have reviewed your above request and in addition to my response of July 13,2002 have the following opinion.I The sewer system is under the control and supervision of the North Andover Division of Public Works. Pnclosed in your compliant package is a letter dated February 29,2000,addressing the pump Clem Ito John A Daley,Esquire,from J William Hmurciak,P.E.,and Director of Public Works. T Tr. Hmurcz states in part"We have researched available information at the Division of Public Works in respons to your letter of January 25,2000 regarding special permit issues of the Sutton Pond Condominium Complex. We could not find any specific records for the inspection and testing of the sewer pumping station which now services your clients building."(Copy enclosed). I am of the opinion that there is not sufficient documentation in either your or Attorney Sampson's correspondence to substantiate,at this time,any action by the Building Commissioner/Zoning Enforcement Officer. Pursuant to Section 10.4— Variances and Appeals--of the North Andover Zoning By-law you may appeal this decision to the Zoning Board of Appeals(ZBA)with in thirty(30)days of receipt. If I may be of further aIssistance please call my offices at the above number. Yours i ly, D.Robert Nicetta Building Commissioner/Zoning Enforcement Officer I CC: Heidi Griffin,Director CD&S Thomas J.Urbelis,Town Counsel Bnclosu5es: BO-A D OF APPE1 1,S 688-9541" BUILDING 688-9545 CONSERVATION 688-9530 TEALTH 688-954<J PLA\1,';R rG 638-95 35 I Town of Forth Andover �¢Office *kgRrp of the o ° m n Board Of Appeals Commu ity Development and Services Division 27 Charles Street North Andover, Massachusetts 01845 AC � D. Robert Nicetta._ Telephone(978)688-9541 Building Comm ssroner Fax(978)688-9542 I I " Any appeal all be filed Notice of Decision within(20)days after the Year 2M slate of filing ofthis notice in.the ufllce.ofthe Towit Clerk. Pro at: 148A Main Street NAME:. . Gregory P.—S-nith and Stone MM Realty TruA c/o HE G�S)a November 12&Decemberl% Devine,Millimet&Branch,P.A.,300 Brickstone 2002&June 8,2!1#14 Box 39,Andover NM 01810 ADDRESS: far emises at: 148A Main Street PETITION: 2002-050 i North Andover,MA 01845 TYPING DATE:June 14,2004 i The North Andover Hoard of'Appeals held a public hearing at its regular-meeting pn.Tuesday,Jane 8,2004 at 7:30 PM in the.Senior Center, 1208 Maim Street,North Andover,Massachusetts upon the apglicat�of Gregory I.Smith and Stout-Mill Realty Trust,c/o Devine,Millimet&Branch,P;A.,-300 Brickstone Square,P. O.Box 39,Andover MA 01810:for premises at. 148A Main Street,North Andover,aggrieving the decision of the Building Commissioner to perfotin en£orcemcnt action under Section 10,Paragraphs 10;1 and 14.4. The said prernise affected is property with frontage ou the Northeast side ofMain Street within the 12 zoning district, The legal notices were published in the Eagle Tribune on October 28&November 4,2042. 1 The followin, g voting members were present: Walter F. Soule,John M.Pallone,Ellen P.McIntyre,and Joseph D. LaGrasse. The following non voting member was present: Richard.J.Byers. Upon a motion by Ellen P.McIntyre and 2°d by-John M.Pallo ae,the Beard voted to uphold the Building Vommissioner's decision and DFAW the Finding of the party aggrieved Tlie Board finds that the applicant will have only 3 Board members who have heard ail the applicant's evidence,the mandated qualification to vote. Phis is the last Board me:,Ioard where the applicant will have a quorum for the petition. Since December 10,2002, the applicant has requested to waive time constraints in order that the concurrent court case could be resolved. The applicant requested the Board to waive the time restraints from November 18,2003 to January 13,20M because all issues were resolved except one. Voting in favor of the denial: Walter F. Soule,John M Pallone,Ellen P.McIntyre,and Joseph D. LaGrasse, Town of North Andover Board ofAppeals, NZO Walter P Soulef Vice Chairman 'Q-,j _ I Decision2002-050. MOO. C Tllmoriwealth of l"Aassachuse County of Esser; The Superior Court CIVIL DOCKET# ESCV1°09-01060-B RE Vancievoore/Ind0y el a! SuHon Pcnd Condo Trust TO Charles A Perkins Jr; Esquire Perkins & Assoc iales (Charles A) 3 Princeton Street Suite 306 N Chelmsford, MA 01863-1558 NOTICE OF DOCKET ENTRY You are hereby notified that on 08/04/2004 the following entry was made on the above referenced docket RULINGS AND ORDER on. Motion to Enforce Setttlement Agreement. The parties have reached an .enforceable settlement agreement. That agreement is embodied in a document entitled "Settlement Agreement" and attached as Exhibit H to the affidavit of Charles A. Perkins, Jr., Edquire, submitted to the Court on July 12, 2004 in connection with this matter. It is hereby ORDERED that with respect to section 2(d), access to Building A shall be reasonable. Neither party to the Settlement Agreement shall attempt to use this Agreement to impede or enlarge reasonable access to Building A. Patrick J, Riley, (Justice) Copies of Ruling and Order, mailed on 8/4/2004 Daled at Salem, Massachusetts this 41h day of August, %004 Thomas H. Driscoll Jr , Clerk of the Courts BY JoDee Doyle - Sheila Gaudette Assistant Clerk Telephone (978) 462-44%4 NT This Settlement Agreement ((he ",Agreemcnt") is entered into this __ day of — 20.__, by and between the undersigned Board of Trustees (the "Board" alid%or the "Trustees") of the Sutton Pond Condominium Trust; a condominium created pursuant to a Iviaster Deed; Declaration of Trust recorded with the Essex North Regis(ry of Deeds at Book 3840, Page 37 and Book 38 +0, Page 84, respectively, said Trustees being the duly authorized representatives of the Sutton fond Condon-milum Trust (the "Trust"), (lie organization of unit ov mess of the Sutton Pond Condominium (the "Condominium") established pursuant to M.G.L. c. 183A, on behalf of ti,c Trustees and the Trust, as well as their successor-"Trustees and all of the Trusts agen(s, ser-ants, employees, and representativcs, and Gregory P. Smith and Linda M. Vandevoorde, individually and as Trustees of the Stone Mill Realty Trust, \.vith a principal place of business located at 148 Main Street,Building A,North Andover,Essex County; Commonwealth of Nassachusetts, as v,ell as any and all of the Corporation's agents, servants, e1jlployees; officers, directors members, attorneys; representatives, trustees, beneficiaries, partners, shareholders, aflilla(ed entities and representatives, (hereinafter collectively referred to as the "Stone R1i11 Realty 'Trust"). \:VTIEREAS, Stone Mill Realty Trust brought a Declaratory _Judgment .Action, Docket No. 99-01960 against the Trustees involving right's associated with Building A as set forth herein and below, and WHEREAS, the Defendant in said action v,,as the Sutton Pond Condominium Trust: and WHEREAS, initially, the entire property which includes Building A and the Condominium Trust \,vas owned by Elm N-1111 Realty Trust which was established by a Declaration ofTrust recorded in the Essex North Registry of Deeds at Book 3675, Page 247; and WIIEREAS, Elm Mill Realty I-rust purchased this property from URDAC, Inc. by Nvay of deed recorded on March 1 1, 1992 in the Essex North Registry of Deeds at Book 3675,Page 255;and WHEREAS, URD,AC, Inc. atlenrlpted to develop the Property and secured a Decision from the Town of North Andover Massachusetts dated December 22, 1992 and recorded oil March 1 l , 1 992 in the Essex North Registry of Deeds at Book 3675; Page 220; and %VHERI:.',S, I lm 1\1111 Realty Trust I1 was established by way of a Declaration of Trust records d in the Essex North Registry of Deeds at Boole 3840, Page 233- and WHEREAS, a Notice of Lease from the Trustees of the Elm Ivliil Rcalty )`rust to Elm h-lill Realty Trust 11 regarding Building A was recorded in the Essex I"orth Registry of Deeds at Book 3840; Pace 33; and vJIIEIZEAS immediately after the recordin- this Notice of Lease, Elm N- ill Realtti, Trust I created the Sutton Pond Condominium "trust by «ay of a Jklaster Deed and Dcclaration of Trust recorded in the Essex North Registry of Deeds at Book 3840, Page 37 and Book 3840, Page 84, re Spec tiv ely; and \t-1-IEREAS, Elm Mill Realty Trust I1 con,eyed the rights associated w lth Hoisting :l by way of a Bill of Sale and Assi<,rurlent recorded in the I::ss(°x North ReS-istry:of Deeds at Book 5093, Pagc 1 -91 and Bonk 5 101 Pugc2/ 3. ;cspcch\-c!y (oGcor'!cB Stern; and V/}l[RE/\3, on ]uoc 30` 1998, Grcgor�/ P- Smhhpunhu,scd (Ile proptfr(ykom Ocnrgc B S(cro; ond lFlJ2RT�\S, |jUe !o the propelly «as taken br Gregory P 3mi,h and Linda k4 Vanderoonjc hy "�x�� of an Assigomcni and 8U/ of Sale recorded in the Essex !�oUh Dcgisin' of'~ends otDook 5 1O4, Page 2i4 and Book 5 1O4' Qe2]1rcspcchvM)yqand MWEflEAC` uDcc/nmhono[Tius( csiubUshin9the Stone Mill Really Trust h). Gregory P Smhhand Linda �{� \/uudcv000dcasTru8ecswas recorded in the Essex l�oDb Registry of[)cedsa' Book J3D4. Page 321 , and ' V/1 TEDE/\3 � . an ss/gnmcn( o[Owe from Elm KfiU| 8cakyTrus! to Stone�vfiU| Really Trust n[onyki(crcs| associated Wtb 8:Udino A was recorded in {bc 2sscx No"b Regis([y o[[}bcds at Buuk 5384, Page 327; and _ V/|1ERE/\S. an Assumption of Lease by Stone N" U| Really Trust o[an-rrights' associated m i d xUh Building \ \vas recorded in (lie Essex North Registry o/ Dc"s at Book 5381 /agc 329 wid � V/7IEKEA3. /hercnosaGroundI.cusnbc( neeuE /mNCU| DeokyTrugandE/mK6U/ {lcuky Mal l| dated September ll {99],vx icbp/asncrcrrccOrdcdn/iib/bc|Registry of Deeds; and WHEREA.',-): a dispute has arisen regarding various rights associated \vith tfle uscof'Ruilding\.the Ground l xase and the n�b( (nuscco cnonao� /oihc � ooPundCondonbOumTrus|;aud � � V8ER]EAS, Stone NfU| Really Trust., in i(s }cdurs{ory Judgment, has rcgucs(cd rcUc[by o/'sco � Counts a�oins/ �h� trustees; and ! "WEREAS, these Coums KOO Coum 1, Aclaratory Judgment regarding parking spaces; | Count l/' I}edxroLory ]udgmcn( rcganJingo (cosh rCnuovoi Cuun( O[, I}cdarx|oryJudgcncn( vvh` � respect to rnahvenance of light of Nany; Count IV, Occhratory Judgment "Ath respect M vehicular access to rear o[buiNing; Court V, ocount io equity for [ui|u/e to demolish old scvm/pumystation and insaU pump to courtyard U8sLaiion; Count V}. and Count \ //. Chapter 93A." on i WEBE/L3` (bc Trustees hvc O|cd an Aos"cr ond Coun<ccc|a6n—and a Request for ' Dcc|ura|ocy Judgment, and � V6 lERE/1S. Stone Mill RrokyMost haxmaintoincd U" rights cxis|sus (o (hcprnper(vaso result oF(bc Ground Lease; and � WHEREAS, the Tustecs have muinioiocd (ho{ Do( S(nnr 8EU| hv DNATTus has no gh`/ sm the cornoon areas n[(hcpopcdy, both under Uclo / ond/nrundcr �b� Ground ! easc. and WHEREAS, We poNicsdudrc to rcso/vc this cnaUorund /bncgo the expenses ofany further |�(� / /ga h mn. 0W T]HER-EFORE. in considcrohoo of the [hrcgong and for other good and valid consideration, he parties agree un fbUo*s: — 2 � ihc [n|/nxiug, icrms and conditions xiU be hind/nDupon hu(h partics` \hck heirs znJ aso�,,nsrc,�,,,,xrding the specific issues set 00h hereunder � 1 . jjyvjyj� Thc Us: nhu/} cuusu (o |`e in;mOda yy2ky pumpxrW) uoa|unns>s/�rn, (n the cuonni yc*cr [zciWS ^|lidh are adimony Buddha .\ n/-------- | ]hc TroSi cn(c/ u maiolcnoncecon|cact v/iUl [%cd � Lonnpre"sorondPUMP [uC11nU/o2)' usO/Ioda[eu[the execu|iOn o ikis ��1d�mcni /��/ccrocnL u � copyufxhicll is a1mched herdo and incorpor2tcul hem"All and identified i-especti'uli�asEx)iibiL "B` � and Shall moiniaio this cooiroc( aod pay for the xomc for period of three `I' years from Me date of the above, � � � []urin� the We (3) yuarpc/iod, the ]ius( shall bcre'spoosil |e, /or |hc cnain!enonrc` rcpair � and /[ncccssury, rcp|uccmcn( oFanyyumpsaod/V/olunn sys(cmsrc/uicdio (h�cSumc This shall not � include components and pipes outside the pump system wTich exclusive xcrvcBuild /\ i m� �xcq� as � ,;dfoAh below. � Stone Nfill Reali), Trust ag7recs that Me pump and alarm systern and .311 components thcrcto shall nOL be used in a manner conwary or inconsiment with any apphcoWe sWRqq rude or reguh5cm of We Upahment of flotechon ("DEP") or the North Andover Doard off lealdi and that any SLICII LIS(2 vould hereby be prohibited, pumps ami QiTi sysorn to the Anic All Really I rust in a good and as Vie Trust shall construct a neW Bed tO 11011!�C HIC- PUYI-)P qsWnL The deign Ad! be consistent with the al'Chik-ClUral sMndHds at' the propcj�tyl-his shall include a room for the, placernerit oifilol less than two (T tmsh barry I TO Shall be cm-riMeld an or before Februai-v 29, 2004, weather permirting. 'Ile Dost shall have the Hght to AM& Me necessary perniks establishing Te lawful use of the system, However, die ]'rust shall not be obligated to ipply for an), said permits, v\/jtli the exception for vviork which is required to be complewd hereunder. III such casc7 the Trust agrees to Stone Nlill Reaky Trust by any State and/or municipal agency requiring Hla( said permits be obtained. In the even that Ad action is brought agadist Stone XCII Realty'Dwst, the Pust agren to � ]F�u shall he Ulc io|u/ and (uU rcsp0nSi��>/iy the Aug Jas io Stone K�i}| [�ro||}' T/�us( � /rya/d/n� (bi5 issue w/[h (hc exception (ho( (he Tius[ and We K1iU Rcu/h Trusi sboi] be, � rcsponsib/o [br hflyyerccn( OOY�) o[i�cc0�(� [!h / i � � , � o crc� accmuo o @nj'rc`vcrp/�c3homUicsc»rr pumpSia\ion x'Ali sm n'cS Budding & (o k1am 3irocL In (hc c'cni any work is required h) rt�ords (o [lie surnc, the parties agree <0cmp|nya mu(uaUyuuep(ab|econ(ssciorN perform an)- said v/orkand � shall vvortv/iihcudh other ma reasonable <ashion (oogrccupmn said contractor and the Scope o/xoY � said ",irk, � — 3 � yio�viUoi:odin� me Am�c. the Trus( dhuU not have anv rcsponsibih(y or nNigahons hercunderbn the crTn( o[ucy|ipcnc: on the par| o[Slone k0! Dcu»YTiug. their oqcn(� senwnn . OoypoccS aod/or |cnaois. indudcd in ibsishcStone Mill Rco/ty Trust's obligation ( noi/fi th c Trust o[any nuincouncrrpuir and rqp|occmcnt issues ina ( mch and rcasonub)emunncr. Z (a) Thc T-Fus| Will provide Stone NM Really Trust the cxc|udrc use to use the ten (iO` vm(orparking spaces located behind the GrondcBuUding, Phase Vl/l. all asset fo�binExhibi< `�['`' xtiuchcd hcvc(o and incu/pnru<ed hercvi(h. The Trust shall place signs indicodng i6isexdusive use` The exdusivc use hours shall be Monday Lbnougb Fbduy between the houo of8TUany and T00 pin. CuWsignxshuUbep}uccdon (heshc, xca(hrrpenniking. NriWihiU7(3O) daysOomiheduic o[(h|xAlrecmcnL (b) Ile Trust shall remove We s1/ipcs outside Bui|ding & and aprccs ihui said area Mich 0 dmxoo{Exhibii ^C'` AM! be for the exclusive use oi Building A ' `. (c) 'File Tiusihas established a |oadioo and uo|ouding area which Slane KUf<cu/tyl'rus! ,shall MA,,-e- the right N use us set [brUhbelow This area is designated un Exhibit '`D^attached hcrcio and inco/porotedbcrcv/i{h � /d\ � In regards to \whicWar access to die real-of'Builcling ,\, [lie Trust agrees to rel-novie the grao and Ooy'crx from the right side o[ the archway us the surnzlnoks from Sutton Pond 10 the � |ruscd Building and replace (he sarnc with compacted gmno The Trust acknowledges that Stone Mill Reaky Trust wili require Unui(cd access to |his property -ininstaliccs where access to the main cmi-ance of Building A is insufficient in size at- placement to either conduct business F VePSAr mrs (b advance ,~`_ to the Trust-'` .~ ~~^ .~^. a,",c "`^^s^ shall" only be Q u vcu/c/c \vo/cn is no more than ibe vvidih uf(bcareu that would exist thereto and Stone Miff Realty Trust shall he required io take coCboc(ions to make sure At We bgh|so[pedestrians arercspoc(cJ and not � Hmpcdcd D is the par ics' intent Wt lhis is a limited access and for nn|v certain purposes, )]onc of � the |zas| nf vvhichis the fact that the access :mu|d only bc utilized nhcu access fro rn the pa rk�xngucco | above is not possib/n The access would be |imi(cd 6nm the 15mc uf100any tbvough 310 p.m. MoodayLbrough Friday wit an exception [oremrrgcncios and is [ur{hcrUnoiicd as Wows: � (d Stone k4U| }<co|iy Trust, i�sogen(s. scrvun(� und/orcmp|o}rcs :hzUbc liable for any � damages caused as a rau|i of this use and shad indemnify (bo liusL as set fbnh horciu, --- (0 Tb� Trus� ugr�c� (oromovcibcp|an(owh/chiscuocndya� (b�poopc�yunduh|izru � � � gmnUr post chain to |imk access to the rear to he placed at We bon( of the oobnay in u nnuoner � � which would not impede Stone Mill DcaihTrus|'s access to ihc rcoq based ouaU We provisions set � [nr|b hereunder. The Trust will ppovide to 3(nnc 14iU Realty Trust with u key for access thereto. Stone 14U! Really Aus| will bc required (orc/ock the chain upon his ingress and egress (o the rourof dhcprupo(Y. 3- The TFus( xi|| be responsible for We coUoc(/on o[ Stnnc K1iU Realty Trust's common everyday trash /noh:zzrdous mo(criu|d. Stone !AiU K�ok , Tius( v/iU be 8nnnc/oUyrcsponsib|c for the removal ofony <cssh' vvkh pa)npcni being made (cn(]O)days after bcino invoiced hy the Trust. Trash by the Stone All Rea|(I - 4 Tru�< shziU bc � d � u�c ��n ir:sbshaU be left out oVcrn/g,hi Trash shall be n|occd in appnoyO(c Apomb/e bags. In udd((ion. |hc Trust agrees to Un3|o nc N0| Really Trust tuplace adumpscr for shop icnncons(rudioop�qcc(s in n (hcparkiog uuS �� lbs placement mus| still allow; '�rcss |u U�c T rus( propcuy mid Stone K4iU Rcu||y Trust will be responsible for damage io Persons or properly caused by [he same. For any prof-eysiona| work contracted, said contractor shall be responsible for (lie removal o[ any and all debris O-orn ihedNz at lbc con o[said cno|nxc/or 4. The Trust shall nUon Stone k1iU Rea|iYTrus( to trim Un trees which overhang BuUding &. so long asibe same is done jnuncnviroorncn(aUy sound manncrpunuon| (nurnu|uuUY agreed upon plan and Stone k1iU Really Trusiagrees to remove the cu/ branches,etc, Oom (hcTrus| p/opcUy. 3l CTYus| sba|| stipulate that the Following is current!),, acceptable: (a) Stone NlU| Keu|<yTiusi vvi|) |rim the |p/o/Z\ chcrryInes and mainLnin ibe planter in hunt n[the b Ud� u mQs; � (h) Stone KAU| Realty- Trust will bc able (o/rim any branch that isnvcchzoging QUild5ne, A, at � u location on the tree that is in kceping xi(b grncruUy accepted pruning techniques and as rccocnmcndedbv (lie company pruning the trees; and � 'c) No other trees niU bcdamaL)cdnrrcmuvcd. � 5. R The Trust will aUovv Slone k4U/ Vat, Trust the use of the conomunurcos xhichu/koio the bui|ding.providcd the same arc used in accordance with the Rules and Regulations o[UhcTrusLaredeoncdupappropduidyuOcrusr. undarcno1inxnyxaydcstroycdhy (bn |cnonis. Pudhcr, said use bvthe tenant shall be hncnrUunchon \11111 the use o[ibcsame hydhc residents of' |hc [ondnminium Trust. In exchange for this us. S(noc KU l{cu|ty Trust qlrees (o maintain the (urge Dnnd light cuorcnUy existing oo DuiNinQ /\. as NN ell as (npay for all clecidd(y for tile same. Tb/s flood Ugh( mus( beopera/cd ham duskuntil 9�O0 pm. ona daily bass. ThcTn/c1 | viU pmvidc (*o (Z` picnic (oNcs �rcommnn usc�—� Redly Tms( agrees (o hold the Trus( ! bann|ess. ! 0 Tbe Trust agrees ko remove the snov/from die road and |nmainiain' repair and replace sn��ruadway' uUnv~ing Slone N-fill Rc-altyTrur( an casement 6zr ihc sum� 3mc NNU � Gczky ]los{ agrees to shovel the ddcxa|ks at Building /\ and agrees |o remove all vehicles in � accordance rvi(h any ouis\undiog sno-w removal policies of the Trust. 7 �S=lll�n�s The Trust vU/ stipulate that the signugc at Uhe front ofBu/Udirl o, / as i tcuocn d y cxky is to he Wed exclusively by Stone kIiU Rco/�yTms| in accordance with any and a/| Tov/n rcquirccncu[s. D- The Tiust agrees touckuo*/cdgc Stone k4Ul RcQ, Iius(`s righ(s (o employ nuGidc icmpo/ury structures, [bciUdcs and equipment suppod (n Building /\. The Trust must be provided priurno(icc. Sid notice shall WON /hc }cngib of|imc said structure v/iU remain no the premises. Thc Parties (o mu(uoUy indymnih/ each other regarding the provisions hereunder. 5 y } rus( Shall pu! to ,�(onc �fill Rca!|yT rum ul-,uoihccxccu<ion of this !\�rcm�cni^ <hcsumoFTcnll�ou�anJundU0�/0() Dn|luS (�!0`U00.00). ) 0. (u) Stone Mill Realty Trust agrccs |hotStolle 'If 11 Trustxnd/nr )Is vucsis and Iovi(ccs ,�ho|| bc bound by [lie Rules and 7lcLlu|x|iunso[the ]ins( vc�aojjo'-,parking, Snow p!mvin�and use o[ the cnrnr000 areas as they may be a/ncodcd. u cuncn( cop� o ch are aUachcd bcrcto and incorporated hercv/i|h and ideo(ihcdrcspcnrchasExh/hit "E^ (�) Sinnck�iU ��akyTrus( a�rccsioundcUukcandb� rcspon�ih|cforuUorcoso[BuUd ` � m� /\; ho|b S\ruoium| and u|bo*isc. /oc|uding the main(omnce. rcpuir and rcpbcccncu( of ally i(ems mihinsaid Building and all utilities FeOardinL, the ramo. / /c\ Insurance: The Trust aurccs k7 maintain (3uocra| comprehensive insuconccpo|icyjn connn|ioncc with [lie Condom in]uoodocunicn|oa( the Aoucie|ion. IS(one-N0| Rea|[y Trust o0rcos(o mallitain insui-ance uo less than the ailloul)IS set fol-Ill if] Exhibit "I "attached hereto and incorpoiated of Stolle 1\1 11 Really Trust's curr I Icate (d) Except as modified h� the/\�,,rccrnent. (heTrus| hereby acknow|cdoes and accepts ihc (]roundLCuSe (brBui!Jiu- /\, o copy Of'u1 ich isu(iachcdhcpek/ as Exhibk ^fl^ � I SonukuncouSIyv/iibihecxccudonn[(bisScU/umcni /\crremco( ondaUniberakacboco|s � hereto, the S(unck4iU Really Trud Will cxocu(C (lie Release o[Claims I'll [avoro[[lie Trus( a�ucbcd � , � hereto us Exhibit ^l' Said Release will bcdccmcd to take effect inaccordance ni|h ibuprorisions � of Paragraph o[UnsA�/cccncn[ � -'---' | }2� �icou|(ancous/y ��ith the cxccuiino Of this ScK!cmmd /\grccmco/ and all n(bcr attach mcn(s | hcrc(n' [lie '[ius( v/U/ execute the Dc/casc n[C!aims. in [u,nrof'3(onc K{U| Reaky TrusL attached hcrcin osEdhibi< '']^ Said Rdcasc v/iU be dccmcd !o take effect in accordance With thcprorixion-IS � o[Pzragnzlih n[(his /\�rccmcni � / � / I Simultaneously v/i(h the execution o{this A(-7recmcni and all other attachments hereto, the � parties vj|| cxccu|c ibcStipulation o[Dismissal *i(h Po;udicc and VVi(hnu( Costs, attached hereto as Ezhib)t ''l<^ Said Stipulation of Dismissal will he D|cd in accordance with the provisions of Poraeraph _____ oF|bis /\grecrncoL � � l-4 As set forth m this /\.i�rcemcnLifanyparty shall dcfaukin any of-its obU-u(iuns under ihi� � ScNcrncn{ /\..rcernen(, such party shall be. liable /n addition io all urnoun(s-set {bi-th hereunder fbraU � reasonable expenses incurred by, the non'Jc/bukioQpartvasa consequence ofsuchdo/buk c/ d� m u m�' but not |imi(cd to, the costs (o Cure Said dc[bukarbitration costs, osndias am,other costs and /�os set forth hereunder, | 5 na C(.)IHIem:A--,tcd hei-e-Lulder and any and all daj lgces relati-C to the same as \�Clj as to each Party's rc�i�ectjve oblinations under this A(-,)-cenlent. Yurthel-, Stolle Realj�; Trust am-ces to . and hold harmless the Trust. its agcnis. servants and- from [lie use of-common-areasas - 0 —(Ifall\_iudgments as a result of' dqnlage, Whetherio persons arid;or propuj�, a.� a result of- tills the breach of this Agreement ,nd am \vork- Coll tern p)a ted 16. E-och Party, as stated above, shzU at all times be obligated (ococnp|y wi!b ihcicrms and conditions cif this 4grccoocni Nokri(hs|andin� (b�s` tile dcf,9uNog, Party shall rclnnhuocand repay (lie nnn dc[auh � !h ' m� party, c/r o�cnis. scrvoo(s nnd/o� ccnp|nycCs. all expenses and o(bcro 'ms mcu//ed by (hz nnn'de/�ukin� party and/ur <bmr s2cnb, arvan<s and/or cmp!ovccs For (Ile cnf,orcunco| Of this AL�,rccmcnL |he collect i000f any mnnicsclue , — — ~. hcvcun'dcr' and tile|be—cu o� o[ » ny deCauh arid/or breach of this Af)rrccocn\ a1on� he costs assoc :ied ihurc[n' /nc|u du/L,rcosnnob)c aKorncy's [ccsand costs Each pnr(}. u( their dincrc(io n. rnuyku� are not ohU^Lo 1od to!anv defaults and ibc costs thereof Including rcusone b|� a ucncy's [ccxand shall beccirnburscd to mid rlon-dcFaultmg party by said clefal.fl[i mE) parh \vI I (ell (10-) days of the defaultmu part-y's occ/p| of notice of any such expenditure. provided, hoxevc'. U^u| prior (u`making any such expenditure or taking any said uc|mn (ocur� ��iddcfuu . (hcoon'dc/�ukiogportysba/| first �/rc (n the dCfukino party. notice-n[suchdc[uuk and afford the dc{au|b mq party scvcuiy'irn (72)boucs or xuch shodCrhmc 'IS jscnandoLcd � �bY i�be dc/a�uk. (�ocn�ah/c�ihc�dc[u�ub� dC/buI1undczihb \�[orncni m� p�u rly�(n first remove tile � ] 7 —'Ons 'n [his Al-,rcement �hall he a default of the rellic(fies, \A hercvcr the); may appear nCJ1 Lldirl(Qj, hLI - W. those set forth in tills ALircement, those that may exist in the.Condominium documents and rules and re-oulat)oils C�s WCH as []lose set forth in law are aCCUMLIJa[lVe. � � | } D. 7lhio 3eU{cmcu( Ap-rcmncot and all aUocbmcn<s hereto vviU be executed /n triplicate original � by ihc portics. »o ibatcudhporly »iU have full rc{ nf'si2nnd s uiurc {s « bcraiab|� U mQ vkh <h� jnu|rumcntsa anaddi()ona| set of / Cn Or recording � vvkh (lie Registry, a� (hc case may be. Upon execution by both parties of' ( � �c � � { �rccn�n� and all oXachrncn�s\ hcrc to, (lie pnFt/Csa_orcc that tile foUov/io� ucb *iUbcundcAukcn: // ) (booriginabo{the exccu/ud scK/Ccncni ducumcnis vviU be distributed nn that counsel for each part),, has x FuU rcL in be held n esouvvaoddbiribotod [romescno«�n each such counSc/'sdicn( inarc��dancc *jtb (bcfbUop/ ' -'m (Z) an ohgina| Stipulation o[ [ ismissa/ w,111 be filed vkh the Essex Superior Court oct ~~`v/hercupnn the odWiou|s thereof may be released from cucnow counsel [hr (b� rcnpcc(irc Pa� `~'0) upondnck-dingof(kc3ipu|a/ioDsn(sx | ii un the � Cnm1. UlcBHcascsofOuhns^ ^ d[)C rc|cosed [ pcvepadics. � � 19, The parties ac,roe that S(onc MU/ }lca||y Trust Shall xiihdrav/ its appeal pending (hc Trus/'s comp|ialice wit]] Paru�,xph | of tills /\ /� grccrncni. 2O nEach pjuv represents andwananisto |hcoU_hccppailyy�(ha( :Ucunscn(s^ap-pnorab, and/or votes c rcqu/rcd [br (his 3ciUoncn( Aorccmon( aod to execute this Settlement Agccnncn/ (Including all akachmcnts hcre(o) h�vc bccn uh(:incd bvcoch such that the under s' N i�ocd Tr-'|ccs of each xccu(canperhrm (hi� 3cUbmen( � ��coeo t an d (h'c zKodncnts herco. und Uhx( (hc u|ho puNY rnav rc/y upon the cxccu i on of this ScU|cmcn( - 7 Aureement as bindi, Hic purtj so signing. 2 i ,,Ii,,.--.puic That remains unms&• A un&r Obs Agrecmem shol bc ref oi-red to and resAved hy arbitration bcl*c)]-e the AnICHCOn Ailmlintron Assawation ()I- Other jnUtuajjy thbunal. EWCUTED as a sealed in-stRunm an the date and ,ear fAst abuve wrinen- ROARD OF TRUSTEES GREGORY P. SN• FFH, Individually and SUTTON POND CUNDONMUNI TRUSY as -Frustec of the Stone dill Realty Trust By: LINDA \/AN;DE\,`OORE, IFICII'ViCILIJI!)! and as Wave of We Stone N.•jill Fealty -I',-ust BY C{]k1�:J()NVVE/\LT) I (lF [BUSE]-/ � , ZU Tb�npersnnaUyzppcurcd \htabovcnumcd as |kevare /br Do:rdn[Trusi:es of tile 3ui(ou Fm�J �ondoo�|Ilium TrusL and uckno«'>cd��dtile � lnsUomoV (obc (hco- fi-cc act and dccd bc|hrcnz. ' K1yComm|sdonExyircc CO1\/11\4Uy�V/E&LTBOFMASSACHUSETTS - ES3FX ' I0 Thenpeoona||yappcar�d {hoahovcnaroodGrc�nryP �miih. }nd�viduu|/yondasTrusiccn[ Uic S(onc 111,1/U Realty Trusr. und ucknow/cdocd the [or�oio� ins�rumo�( /o bcb�� h��c oc( anddccd, h���cmc. Notary Public � � NJy Commission Expires: � [0���\,!ON\�E�LTB OF K4/\SS~\C8U3ET]� / / � [S3F,%. sx. Z0 � ' --- | � Thcn persmmUyoppcurcd ihc above namrJ Linda l/uoderonrdc, Individually and as Trustee � of, tile Stolle 1\4111 Rcu!<y Trus(` and acknowledged the �b��oin� inskun�cnt 10 be her 8.cc act and decJ, hc/brc mc. Pubhc Kly Comrn/sdon Expinc � - 9 Ilt�nda J«n ar k, ry�Op 12..3 Plv� ®i'I r�4ftryn 978-7,94-4769 EX ). o gD D ..A" United camnprazsav= =36 PgEnnp, 34 Portland St Lawrence, MA 0 i 84�3 Tel.910-685-0808 Fax 978-794-4769 .unitudcomeressor corn January 14, 2004 To Matt Dykeman Essex Mgmt Fax: 978-687-8640 Re: Granite Bid, Sewage Purnping Station Upgrade New/ Additional pump for this station: AUS engineered submersible raw sewage ejector. 230 volt. 2.0" solids Dandling. Built in thermal protection. Vertical threaded 2" npl= discharge_ Includes pump wiring to - control panel, pump piping to discharge line, Initial start-up and testing, f=ull 1-year paps and labor guarantee. N+ew, level alarm-system includes warning light, warning buzzer and additional float switch with 2D-foot cord.' Installation of Float between lead and lag, install warning devices, testing and guarantee also included. Please mil me If you nave any questions or need Further information Thank you E Bill Dufton -Ut nit & U Portland 8� E im Lawrence, MA G76•33 Ex 9 73-7 September 1., -1004 To: Matt Dykem3n Es&ex Manage,, [it. Fax: 9/78-697 3utlject,' Granite building sewage Pu"Ving stabc)n ,sendce quote. Matt, Quarterly service on ADS sekyag� Itft Station . 1, includes- Electrical, me-chanical testing per manufacture's soecifications and recommendations, Check motors, PUMPS, power cables it I-n t r.., seat alarms, floats, chain, check valves, p; a e a 0 ipjnq connKtIons, discharge connections, Adjustments and minor repairs as rtece,�saTy. -11 cleaning as deeded. Prime both DuMps. entry. Supervise Vk/et WP Conrined spa-ce Written reports detailing Che cond)tioll of the systeq)5 VVelt well Pumping', cJeaning, and (Ifisposal I. an extra charqD% To be done 'by Acton King of L.ovy Management, ell 6-rld Yvill be bli[ed direct to Essex united Compressor vvill conLct/ WOPU'inate this visit with Acbc)n King if YOU wish on an as needed basis. F-IE'a,ce C-811 Me- if need-any thing fur her, Thank You Bill Mon -CHI BFT yD ----- ----- h- T r a s u in p Shed Speeg,'Cat'GIn. Shed will be approximately '12'X G'X 6' and framed �,vith KD lumber with PT sills. Exte-iDr appearance will be similar to existing shed. Roof will be asphalt shingles and drip edge. Shed rna-y be partitioned inside to create two separate cGnjpaFfMent_q' If an extra COMPUtMent is created, each cors-ppartrnent vvill have an individual door. ,AV&EPUCAN ARBITRATdONT ASSOCIATION Construction Arbitration"li`rilbuxial hi thrd Maac;t stunt A rbitraiion between: Rr-: II1i0E010 .005 Gregory Smith,Truster?of Stone Mill Realty Trust "Clain,ant" and - Tmstees,Sutton Pond Condo Trust "Respondents" AWARD OF ARBITRATOR 1, TIFF LrNDZRSI(,-jNFD ARBITkATOR, having been designated in accordance with the arbitration agroernent entered into between the tabove-named panics mad dated December 0I, 2003, and having been duly sworxl, and having duly heard the proafz and allegations of the parties,do hereby,F,[ND, as follows: 1. Claimant is found to have breached the SettleuiEmt Agreement tntot'ed by the Court in the ease of"Gregory P. Smith toad Linda M,Can de Voorde,individually and as Trustees gf dhe Stone Mill P%ealty'trust v.Sutton Fond Condominium Trust", Essex Superior Court, Civil Action Number 99-01960_ lm specific,Claimant has breached the Sgrtle€nent Agreerncm by falling to€allow Respondcvu to install a duplex sewer pump systerc,with an ailum system along with the construction of a shed to house the same, The Arbitrator orders the purchase acid installation of two(2)Goulds non-clo jr sewer gjector pumps, Model 3883 BI-Ip as detailed and specifiie'd in Respondents'Exhibit 29, installed in it"dupJex"arrangement with A con€rods;nlarms,clectrics,piping axed valves as required engineered and designed to discharge to the municipal system in accordance vritlt the Town's requirements and good engineering practice. The installation and operation of the System shall be certified by a licensed Professional Ettaineer, Commonwealth of Massachusetts. The Arbitwor orders;Respondents to enter CIairnant's facilities and make any necessary changes to CJainmant',fi electrical system to provide the necessary power for the new duplex sewage pumps,controls and alaTms. Any poweP outages must be at tbo convenience of Claiman T!he wet well is to be in accordance with manufacturer's rcoomrnendation,State Plumbing Cede and'Tide 5 Regulations- The ArUrator has determined,based on lstimony,documents,exhibits and site inspection tl)ag Claimunt'S requested"grinder" pumps do not meet Claimant's concern for maintenance and operation. "Grinder"pumps,given the discharge piping configuration, length,size and flow velocity could have e,i7luent"fall-out', causing packing ofthe particulates in the discharge pipo, flow obstruction at bends,pipe reducers/increasers and other general fittings. Tho non-clog pump(21,rngterial discharge)would have a tendency to"move along",not packing within the system. 61Grinder primps"have known significant maintenance costs related, particularly after the three-year Respondent's maintenance liability agreement, causing a significant burdon otl Claimant at a Inter date_ The Arbitrator Fwds that the pump shed,heated or otherwise, does not come under the Commonwenlib of Massachusetts State Building Code 780 CMR and is ordered to be erected in compliance with all other requirements of the To"of North Andover. The pump shed shall have, n a. minimum,heal, full insulation,power ventilation upon opening of the access door,sufficient lighting for the pusrrp maintenance and,a minimum 120 volt,20 amp outlet for � maintenance use, 2_ lZespoadeMs are found to have breached the Settlement,Agret rueut,as dcscribod in item I- Respondents provided a minimal loading/unlosding area which Claimant shall have the right to use and Milcd to provide a suitable parking area without obstruction of traffic now,toading/unloading facilities, or fire large interference. Tine Arbitrator that the closest surrounding faaa king areaos are numbered and dedicated to the condominium residenrs_ Page I oF2 Received Time 0d, 18. 2:3041 �VE d_90H 'ON WHZ,l 6 SOOT 'hl 'I �n In die Matter of the Arbitradoao betwecs-i: R--: I I I I Q,E 01040 05 Gregory Smith, Trustee of Stone,gill Realty Trust "Claire mit" aid Trustees, 3UUon road Condo Tntsl ``�esporidenls" AWARD OF A)MITRATOR The Arbitrator orders Respondents to create a ps kistg slot witftin close proximity of designation 2 as showp on Exhibit C, for psrrpose Of Par)dng a service vehicle for access to the sear of Claimant's building. I The Arbitrator finds no breach of the Settlement Agreernent, as described in item I in regards to gash siting and removal. The Settlemeng Agp@oment does not designate a permahent location for the trash contain M_but only designates an area for She short-terra construction project. The Arbitrator orders Claimant to place the trash containers at his desired Iocation without obstruction to the ingfess of Respondents, propeny. All conditions regarding this issue in the Settiomem Agreement remain in full effect. 4. As testified to, Claimant has.Failed on, at least One Occurrence to adjust the lighting as required in paralgaph 5 or the Settlement Agreotttent. The Arbitrator orders Claimant to provide drag diligence in maintaining the operation titt10 00c1c,specifically when where is a power outage and daylight savings time adjustmenta. The Araiteator reiterates the lindinp of the Court in regard;;to the"Settlement Agreement",_civil_action nuzambcr 99-01960 and Claimant and Respondents to cooperate jointly,allow access Clairnaut's [eased property in order for ResposidePts to effectuate the terms of this Order. All legal fees shall lie the bugden of Lhe respective clieaats. The administrative fbeg of the Am-ericit Arbltmtion Asseoiutiori totaling N2,100.00 said tl'ic compensation and cKpenses of thg arbitrator tomfing 5842.12 shall be borne by the pa Hies equally. This Award is in full settlement of all claims and counterclaims submitted to Ihis Arbitration. All clairmg scat eacpressly granted herein are hereby, denied. Date Ilfir. chard A.Volkin 1, Mr.Diehard A.Volkin, do hereby affirm upon my oath as Arbitrator that I am the individual described in and who executed this instrument, which is ray Award. Jute AL-J 444 1 Diehard A.Valkinla Page 2 of Received Time Oct - 18 , MOM �/ti 'd—_9089 'ON __. . MH :6 SOH '6l '100 Coarstroction AebiOntiosr l�eiir taRl %ACC t��r— 1 1 �lltl � In the Matter of the A5-bit-ation batwccn: — --�- Ee: I 1 1 10 E 01040 05 Gregory Smith,Trustee of Stone Moll Realty T-nist 'Claimant' and Trustees, Sun'on Pond Condo Trust 'Respondent' DISPOSITION OF APPLICATION FOR C L,AIRZI"FlitnFt TION OF AWAIT 1:, THE UNDERSIGNED ARBITRATOR, having been designated in accordance with the arbitration agreement entered into beeween the above-named parries and dated December 1,2003, and having been duly sworn, and having duly heard ehe proofs and allegations of the Parties, and having previously rendered an Award dated Octobcr 18, 2005 and Charlus Parkins, on behalf of Respondent, having filed applications for Clarification dated Octohr;-r 19, 2,005 and November 8, 2005, and iviark Sampson, on behalf of Clairnana having responded by letter dated November 21, 2005, and Chtrles Perkins, on behalf of Respondem, having filed a response thereto dated November 2i8, 2005 do hereby, DECIDE, as follows: In response to"Request for Clarification"received by the Arbitrator on November 18,2905,the following Order clarifies rbe required compliance of item 2 of the Award of the Arbitrator. I. All site plans given as exhibits to the A,rbitmror have a nL=edcal 2 over the location of the alleged Claimant's assigned parking location. 2. Upon visual inspection of the site,the alleged parking location is a loading dock area as pare of "XhEeerridge"Bm'Iding 3. Claimant's e3thibie#17,sketch by GSD Associates, dated 12/2/03 reelects a"dfi--signed perking and Loading are for Building A"located parallel to the existing parking area facing the"Osgood.Building". The Arbitrator notes that, at the tire®of idle site visit, this wait had a residentiAl unit designation. Therefore, in response to a"%equest for Clarification"to the "Award of Arbiter tor" item 2, the area shown an the submit'ied photograph,previously shown as a loading area to the"Kifferridge" Building, can be the dedicated panting Area for Building"A"if it is revised to meet the following criteria; a. Parking stall crust be an available area 9' X 20' "ea With no overhang into the fire lane or J' wal tiwa1' to the mcoss to rear of Building"A" b. Parking location must be designated and marked "Reserved for Building A c_ Loading dock availability to the"Kitteridge" Building roust be secondary to tho use of paT�7tvg for Building"A" 1f the referenced parking slot cannot be made compliant with the abav�, theta a raew perking slot r1i ust be created in rQa. noble proximity to the access to the rear of Building"A" in all other rospects, my Award dated OctobeP 18, 2005 is reaffirmed and remains in fall farce and effect,. 4MrRic rye DA a E:" j,ar A. Vollcin I, Mr. Richard A.Volleirt, do hereby affirm upon my oath as A-rbittator that I a3:a the individual described in arrG who executed this instrument which is nay Dispositiov of Application for Claffication of Award. T7ate r. Ric and A.Volkin C /C 'i b0 I 'nni Ar"gl—R-MTKON ASMOCRAT I Mater of the-;Arbitration bgjw@@n: Re! 11 110 E 01040M Gregory Smith, Trustee of stone Mill Realty Trust and True as, SMon,Pond Cando Trust DISPOSITION OF APPLICAr,EON yon CLAMPTICATRON OF A SWOM, and having aM UNDERSIONED ARBITRATOK having N5vn d entered into bgtweer�' e"Dated 2h RPOOFdanOv with the, biqation agooMent the abov@-namod Parti@s and dated December 1, 2003, and having been dui duly board the proon and allegations of thr,Partios, and baving previously ran a an cd OctobBr 18, 2005 , for Application f0f Clarification dated Dqcombw 6, 2005 and Charles Perkins, and A �aspa5slt9®n S der d Award dai Reiipondent, having�iled an application for Clarifloation dated jnuagy 20, 2006, and an behalf of GrQ90rY Smith, Claiman�bving responded by letter dawd February 6, 2006; and Charles Perkipa, on behalf of Rospondgnt, ha 'nS filed a =,sponsc; 9hereto dated Febru ry 10, 2006, and Gregory Smith, Claimant, Mod on February 16, 2006, "Now ponClad ficali=lall d air �ieconsiderationll and Charlas perking, on behalf Of Respondent, rpspon as to Redent's I C response dated Fabr�ary 22, 2006 an'd larch 17, 2006; and Gregory V. Smith, claimant,' BID., a Response dated Febrmmy 27,2006 and M=h 209 2006 do heTeby,MCIDE, as fbllows, In response ED Respondenes "Request for clarifigation" received bY tho Arbitrator oLl jaluary 20, 2006, the follow!Dg Wet Warifi®s the rowimd compliana713 O g age 2 of thr,Awwd of the AMtrator. I. All site plans given as exWbIL-to the ArbitFgear have a Alumejigal 2 over the location oft he alleged Claftnant's assigned parking location and are not deaf on-thp difflens ,jo,Is of parking 2, Claim8nt's (sx1libit#17,sketch by 088 Ammiatep,ebted 1212103 raluefAs,% "designated pprking and loading 81'ea 1[br Building A" loaawd parallel to the axistjug parking area falqng the ,Osgood Boildingll, Thf,�Arbitrator notes that, at th Dosignation. �6 t'm@ of thu Bitc visit, tbig unit had a.�osjdentiaj unit 3. The Arbitrator's order of Orjobp ,r 18,2005 and Clarification dated DecDMbBr 6,2005 are clear as tc)Mff-(�t'ng t1le MuiEMORts Of the parking Tho Arbitrator hereby ordors,, clarifIcation on than ausigned parkirig space area of no less than 18.5, X 9' with no overhang into tilt fire lane or 3, walkway to arcesB to fear of Building"A"in accordanpe with the Massachus Department of Pdblia Works, Highway Design manual. 4, The Arbitrator's order of October 18, 2005 allows for an afte_matr joc.ator �that coodeflons, I the abovc� IT, response to(3mgory P, Smith, Clai-Inam's, '%�w Request fOr Cl2rificarion and/of RaQansl I@ration 6tod February 26,2006,the following girder clarif,105 compliance of the 'Word f flee A I t ato Thy Arbitrator's Order of October 18,2005 is r ,lp System. The pies have massarhusp 'ar as to the raqjj,re E an ry M ,tts Registered 1110ats of the ita pu p BWM-ds to design and install a Sgnitary pLnpiag Syst Exlginoors and ious Ton Arbitrator. e'n that'r'F'211Y MOM To N�t� Mors of thr, C Page I of 2 C J, .7 A r. 'ohl IAIU 0 1 n 1 n A A 7 17 1 �I UIAI lki aho letter of the Arbitration bctwe®i; --- — � —� ���< fl1110R01040�0a5 Gregory Smith; d rYisleu of Sld one Mill Realty Trust d Claimani„ and Trustees, Suttiat Pond Condo Trust zResp®n��nta9 'DISPOSIT M Oy�'PPUCATX0 Pop'C"MICATI ON OF AW I Compliance musk be Met with the approval of the Board of Health, I)eVartmP.11t of Public Worlas and the Town Engineadng.Department, The Ai-bitratorwill got allow farther arguments, tesghcray OF exhibits beyond M6 date the hoking Wa&closed. 7h@ responso to RegWm for Clarifications by both Claimant and Respondon2 as aluaf and supports a OrdeT of October 18,2005 Ina]] other respects, i.ny Award datod®ctobe-I g,2005 and MY bisposition for Application of cl °fication ofAwud dated December 6, 2005 are ma#frmed and remain in fib force and effect, Mre Ri6h�r ee I, AW.Tachard Valldnr do hcrcby affirtn upon MY oath as Arbitrator thaf I am thg individual doscrib d in and who @,—,edited this instrumdnt,which is My Diap®sition of application for Clarification of Award. P �Z tau,.13iehard Ae o irl ate Page 2 of 2 rnP+7(1r '111.._ un li ni nnno vi PERKINS & ANCTIL, P.C. ATTORNEYS AT LAW 73 PRINCETON STREET,SUITE 306 CLIENT COPY NORTH CHELMSFORD,MASSACHUSETTS 01863-1558 TELEPHONE(978)251-8509-(800)642-4906 FAX(978)251-3608 REAL ESTATE FAX(978)251-3859 www.perkins I awpe.com CHARLES A.PERKINS,JR.- GARY M.DADDARIO ROBERT W.ANCTIL' SCOTT C.OWENS ANITA L.CHMILARSKI DIRECTOR OF OPERATIONS *ALSO ADMITTED IN NH February 10, 2006 GSD Associates ATTN: Mr. Gregory Smith 148 Main Street, Building A North Andover, MA 01845 RE: Gregory Smith, Trustee of Stone Mill Realty Trust, Claimant Trustees, Sutton Pond Condominium Trust, Respondents American Arbitration Association No.: 11-110E0140-05 Dear Mr. Smith: This letter will acknowledge receipt of your correspondence dated January 30, 2006 and constitute a response to the same. As a preliminary matter, we have forwarded a copy of this correspondence to the Arbitrator, although there is nothing pending in front of the Arbitrator on this issue. Please note that although you indicate that it is your intent to work in good faith with the Condominium Association to resolve this matter, you have done anything but this in this regard. I have enclosed a copy of our past correspondence which is subsequent to the Arbitrator's decision in this matter which demonstrates your non-compliance in this matter. The Arbitrator has decided the system to be installed as well as the shed. The Board has acted diligently and provided you, as set forth in a copy of the correspondence dated January 20, 2006 enclosed, the information necessary for the Association to move forward and install this. It is unfortunate that you desire a different location and a different means of implementation of this Agreement but the same is clearly not required as set forth in the Arbitrator's Order as well as the materials supplied by Kevin Klein. We would also note that some of the work which you have complained of in regards to the shed would have been corrected on February 6, 2006 until you denied the Board the opportunity to undertake the installation thereto. GSD Associates Page 2 February 10, 2006 We would also note that you acknowledge receipt of our correspondence dated January 20, 2006 which indicated that if the Board did not receive any notice from you, the Board would be on-site on February 6, 2006 to undertake the work. The Board did not receive any prior notification from you and had its agents, servants and/or employees ready to undertake and complete the installation when you summarily prevented the same. At this juncture, you are in violation of the Arbitrator's Order as well as the Settlement Agreement and the Board will address its concerns by way of separate correspondence. Very truly yours; 1 harl A:�e=dins, Jr. CAP/sma Enclosure cc: Richard A. Volkin, Esquire Sutton Pond Condominium Trust Essex Management Group NORFOLK-RAM | ENGINEERING SoLunowS FOR THE smv/Rom^xEwT � � September 7\ 2O12 Attorney Charles E. Vander Linden Starr Vander Linden LLP � 625 Main Street Fitchburg, MA 01420 RE: NorthAndover—SuttonPondCondominiunlAssodat|on Sewage Ejector Pump—14O Main Street, Building A Norfolk Pr 'eotNo.76O.001.O2 | ^ | � DearALton1eyVanderLinden: On July 17, 2012, 1 inspected the portions of the upgraded sewage pumping station that serves the Granite Building that have been completed on that date by United Compressor & Pump Services Inc., and have observed that the completed work conforms to the requirements of the pumping system installation outlined in the October 18, 2005 Award of Arbitrator and the May 12, 2006 Disposition of Application for Clarification of Award, As approved by the Arbitrator, the pumping system includes the installation of duplex Goulds Pump, non- clog submersible pumping system, (model 3887BHF with 2 hp, 230 volt, 3500 rpm single-phase motors and a maximum draw of 18.0 amps providing 130 gpm of flow at 48' total dynamic head). The pumping system has been has been installed in a duplex arrangement within the existing wet well in accordance with the manufacturer's recommendations and installation instructions. The system has been equipped with upgraded controls, a new high water alarm, four (4) new float control switches (pump off/alternate, lead pump on, high water alarm and lag pump on), a new electrical panel, upgraded 3" diameter discharge pipe and new valves (including flow control valves and check valves) that have been installed as required within the existing pump house building. The pumping system has been engineered and designed to discharge to the municipal system in accordance with the Town's requirements and good engineering practice. United Compressor& Pump Services Inc., personnel indicate that additional inspections have also been made by the Town of North Andover Plumbing and Electrical department during construction and prior to operation of the system. Although the sewage pumping system is functional and has been placed into operation, additional work remains to complete the pump building heating and ventilation systems and to install an additional alarm light on the outside of the building. Although some of these additional components have been installed, they cannot be connected and this additional work cannot be completed until access is gained to the electrical service panel within 148 Main Street, Building A. Sincerely, / Norfolk RA Gr Associate ONE ROBERTs ROAD 0 PLYMOUTH, MASSACHUSETTS 02360 o 508.747,7900 608.747.3785 FAX WwW.monFoLKnAw.cow STARREmily S.Starr Pc Rau Vander Linden LLP Charles E.Vander Linden 625 Main Street LINDEN Laura SilverTraiger Fitchburg, 1420 VA D E R tel 978-34 5-6 791 fax 978-345-6935 A T T O R N E Y S A T L A W Seven State Street Worcester,NIA 01609 tel 508-754-8882 fax 508-754-3639 July 22, 2014 Via Facsimile: 925-256-7660 Peter Kutrubes 1415 Oakland.Boulevard, Suite 102 Walnut Creek,.CA 94596 RE: My Client: Sutton Pond Condominium Trust Your Client: Stone Mill Realty Trust Dear Mr. Kutrubes: This letter is to follow up on the issue related to the padlock installed on the pump shed that was described in my correspondence to you dated July 3, 2014, a copy of which is enclosed. Your client's unilateral conduct in installing a padlock on the door to the pump shed prevented the Sutton Pond Trustees ("Trustees") and United Compressor,the contractor who . they retained(and who had been inspecting and servicing the pumps for two years) from gaining access to the pump shed for inspection and servicing last month. Although they were not required to do so,the Trustees provided your client with an opportunity to remove the lock on or before July 11, 2014 so that the regularly scheduled inspection could take place. The Trustees of the Sutton Pond Condominium have advised me that your client never removed the padlock that he had installed on the door to the pump shed. As a result, the. inspection did not proceed. The conduct of your client in installing the padlock,preventing the scheduled inspection under the maintenance contract and in failing to remove the padlock to allow the inspection to proceed after receiving written notice constituted an intentional breach of the terms of the Settlement Agreement and of his obligations pursuant to the prior decisions of the arbitrator. By his conduct, your client has waived any further obligation of the Sutton Pond Trustees to inspect,maintain, service,repair or replace the pumps from and after July 1, 2014. Please treat this letter as final notice from the Trustees that they will not perform any additional inspection or maintenance of the pumps from and after this date and that all inspection and maintenance of the pumps is now the sole responsibility of the Stone Mill Realty Trust and its beneficiaries. Any obligation of the Trustees to inspect or maintain the Peter Kutrubes,Esq. July 22,2014 Page 2 pumps has been terminated, waived and released by the conduct of your client. If any inspection of the pumps is deemed to be necessary or any maintenance is required,the Stone Mill Realty Trust shall be obligated to arrange for such inspections and maintenance at its own cost and expense. This notice is being forwarded to you in your capacity as counsel for Gregory Smith and the Trustees and beneficiaries of the Stone Mill Trust. I will rely upon you to share it with them immediately. To avoid any dispute regarding delivery,I am forwarding copies by regular mail,fax transmission, certified mail and e-mail. incere' Charles E. Vander indenn Writer's Direct Email: cvanderlUen(a).stairvanderlinden com CV14-F:�cvlvl4Om PeMtStcn:Mill&Smith liti&,U,,.2 012-2 01411'w b,k0,07-21d014.,pd Enclosure: Letter addressed to Peter Kutrubes dated July 3,2014 = cc: Trustees&First Realty Management First Copy: First Class Mail,postage pre-paid Second Copy: Certified Mail No. 7012 0470 0001 1020 3932 Return Receipt Requested Third Copy: Fax Transmission: 925-256-7660 Fourth Copy: E-Mail: plcutrubes @utrubeslaw.com WSTARR Emily S.Starr Pc Starr Vander Linden LLP Charles E.Vander Linden 625 Main Street VANDER LINDEN Laura Silver Traiger Fitchbuvg,MA 01420 Cynthia A.Brown tel 978-345-6791 A T T O R N E Y S A T L A W y fax 978-345-6935 Seven State Street Worcester,MA 01609 tel 508-754-8882 fax 508-754-3639 July 24, 2014 Via Facsimile: 925-256-7660 Peter Kutrubes 11'1-) UU&Ianu'Do urevara, Suite 102 Walnut Creek, CA 94596 RE: My Client: Sutton Pond Condominium Trust Your Client: Stone Mill Realty Trust Dear Mr. Kutrubes: As I indicated in earlier correspondence, the Trustees of the Sutton Pond Condominium Trust have relinquished to the Stone Mill Realty Trust all responsibility for the inspection, maintenance,repair and replacement of the sewage disposal pumps that serve the Stone Mill Realty Trust property. In order to ensure that Stone Mill has unrestricted access to the ` building where the pumps are located, the Trustees have removed the padlock that they had Previously placed on the building to provide security for the pumps and the structure. Since Stone Mill has full responsibility for the pumps from and after July 1, 2014, it also now has unrestricted access to the pumps and full responsibility for the security and protection of the pumps by virtue of the padlock that Stone Mill installed on the building. This letter is forwarded solely for the purpose of notifying Stone Mill.that Sutton Pond has removed its padlock and the Stone Mill now has sole responsibility for security and protection of the pumps and related equipment. 1EVander Linden Writer's Direct Email: cvanderlin ft starrvanderlinden com CVL�l F.�s.ilSUnon PoMSlone}.LII&Srtu�h Lroganen-2012.2014W b.ka07-24-2014.1,p4 cc: Trustees&First Realty Management