You are on page 1of 121

1

PETRINI ~3 ASSOCIATES, P.C. Counselors at Public Law

ChristopherJ. Petrini
cpetrini@petrinilaw.com

372 Union Avenue I Framingham, MA 01702 (Tel) 508-665-4310 I (Fax) 508-665-4313 www.petrinilaw.com

Peter L. Mello
pmello@petrinilaw.com

Barbara J. Saint Andre


bsaintandre@petrinilaw.com

Heather C. White
hwhite@petrinilaw.com

Christopher L. Brown
cbrown@petrinilaw.com

RESPONSE TO REQUEST FOR PROPOSALS

FOR DUXBURY TOWN COUNSEL Name: Barbara J. Saint Andr (BBO# 438030); Christopher J. Petrini (BBO# 556848) Petrini & Associates, P.C. 372 Union Avenue Framingham, MA 01702 (508) 665-4310 (508) 665-4313 bsaintandre@petrinilaw.com; cpetrini@petrinilaw.com October 11,2012

Firm Name: Address:

Telephone: Fax No.: Email: Date:

1. Please identify by name (and BBO #, address and phone number if different than above) the proposed Town Counsel and each proposed back-up counsel. 1. Barbara J. Saint Andr (BBO 438030, Primary Town Counsel) 2. Christopher J. Petrini (BBO# 556848, Back-up Town Counsel) 3. Peter L. Mello (BBO# 659680 Back-up Town Counsel) 4. Heather C. White (BBO# 660284, Back-up Town Counsel) 5. Christopher L. Brown (BBO# 663176, Back-up Town Counsel)
2. Please attach resumes or curriculum vitae for each attorney identified above. Attached hereto as Exhibit 1.

3. Do each of the attorneys identified above meet the minimum bar admission requirements of the RFP? If other than yes, please explain.

Yes. 4. With respect to each attorney identified, please list each and every Massachusetts municipality represented by the attorney within the past ten years, the years of such representation, and the name, address and phone number of at least one contact person in each municipality with knowledge of the attorneys representation. See Exhibit 2. 5. Please describe each identified attorneys experience in municipal law. Barbara J. Saint Andr: Ms. Saint Andr has extensive experience in all areas of municipal law, including Town Meeting, finance, open meeting law, conflict of interest, licensing, taxes, chapter lands, real estate, Community Preservation Act, housing, elections, and litigation. She is recognized as one of the leading municipal land use attorneys in the state. During the course of her legal career, she has personally handled matters for towns in all areas of land use law. She has successfully handled cases in all levels of the court system, as well as before administrative bodies such as the Department of Environmental Protection and the Housing Appeals Committee. The types of cases that Attorney Saint Andr has personally litigated successfully include: special permits comprehensive permits variances subdivisions and approval not required plans nonconforming uses and structures challenges to zoning and general by-laws board of health issues wetlands appeals, both state and local civil rights and torts

During her career, Attorney Saint Andr has been actively involved in advising town officials and boards during the hearing process, and helping to draft decisions. Appropriate advice and guidance during the public hearing process, and careful drafting of decisions by local boards, can avoid numerous problems down the road. She has also reviewed and helped draft zoning and general by-laws for all towns she has represented. In the area of subdivision control, including ANR plans, she has provided advice and written opinions to the various towns she has represented. She has also successfully defended appeals brought from subdivision decisions as well as denials of ANR plans. She has worked with many planning boards to enforce the provisions of the Subdivision Control Law, including the seizure of surety for defaulting subdivisions. Among the topics on which she has advised planning boards are modification and rescission of subdivision approval; procedures, public

hearings and open meeting law; enforcement; ensuring adequate subdivision security; waivers; constructive approval; subdivision and ANR freeze provisions; scope of review and conditions for subdivisions; definition of subdivision and authority to withhold ANR endorsement; and validity of subdivision regulations, among other topics. Ms. Saint Andr has represented a number of coastal towns and is familiar with many of the issues unique to coastal areas. While a principal at Kopelman and Paige, she was the primary attorney for the towns of Scituate, Harwich, and Manchester-by-the-Sea for many years. She also provided legal services to other towns on the Cape, including Provincetown, Welifleet, Dennis, Sandwich, and Yarmouth during the course of her legal career, and is familiar with many of the unique aspects of the Cape. She has worked with the Cape Cod Commission and Coastal Zone Management, and has handled matters involving public landings, town marinas, mooring permits, shellfish permits, harbormasters, town piers, beach rights, local by-laws, and permitting of structures along the coast. Attorney Saint Andr has brought numerous actions to successfully enforce town by laws, both zoning and general by-laws, in the Superior Court. She has also worked with Historic Commissions, including a recent case in which she successfully defended a decision of the Braintree Historic District Commission which was appealed to the Metropolitan Area Planning Commission. Attorney Saint Andr has worked on behalf of municipalities for over 20 years in the area of comprehensive permits, advising local boards of appeals during the permitting process and helping to negotiate with developers. Among the many towns she has represented in this area are Framingham, Stoughton, Braintree, Harwich, Scituate, Hanson, Dennis, Walpole, Marlboro, Waltham, Norton, Acushnet and Dedham. When unable to reach a satisfactory conclusion, she has defended boards of appeal before the Housing Appeals Committee. She has accomplished the rare feat of obtaining two victories before the Housing Appeals Committee, each HAC decision upholding the denial of a comprehensive permit. One of these favorable decisions was for the town of Dennis, and one for the town of Braintree. Ms. Saint Andr is past Chair of the Massachusetts Bar Associations Public Law Section Council. She has served as a speaker on both land use and general municipal topics at forums sponsored by Massachusetts Continuing Legal Education, Massachusetts Bar Association, City Solicitor and Town Counsel Association, Massachusetts Health Officers Association, Massachusetts Association of Planning Directors, Massachusetts Chapter of The National Association of Housing & Redevelopment Officials, American Planners Association Southern New England Chapter and regional planing agencies. She has taught a number of land use courses for the Massachusetts Citizen Planner Training Collaborative on zoning, comprehensive permits, and subdivision issues. She was an elected Town Meeting Member in Braintree for 20 years, a member of the Housing Authority for nine years, and served on other town committees, including the Finance Committee. She currently serves on her towns Finance Committee. Attorney Saint Andr has extensive experience working with water and solid waste issues in the various towns that she has represented. She is thoroughly familiar with the use of

enterprise departments and funds and has worked on a number of sewer and water projects, including contracting and obtaining easements. She has also worked with towns on issues related to updating water regulations, enacting by-laws, and negotiating with the DEP as to administrative consent orders on both water and sewer issues. Ms. Saint Andr worked extensively in the field of public labor law while employed at Murphy, Lamere, and Murphy. During that time, she represented cities, towns, school committees and other public sector clients in collective bargaining negotiations, grievances and arbitrations, Civil Service matters including appeals, strike petitions, issues related to unfair labor practice charges and unit composition, litigation, and general employment matters. While at Kopelman and Paige, she continued to represent clients on employment matters including employee discipline and discharge, and successfully defended a number of Civil Service appeals. She also provided advice on employment issues as health insurance, retirement, c. 111 F, and benefits. She currently provides advice to municipal clients on general labor and employment matters. Among some of the more recent projects Attorney Saint Andr has worked on are: (1) Braintree Greenbush Commuter Rail Line Restoration: Worked with the Towns Board of Selectmen and the Greenbush Mitigation Committee to negotiate and draft a highly advantageous mitigation agreement with the MBTA relative to the restoration of the Greenbush commuter rail line through the town. Among other things, the MBTA agreed to depress the rail line as it passes under major roadways in the town near Weymouth Landing, agreed to restore Smelt Brook, and agreed to a number of traffic mitigation measures, including road improvements and traffic signals.

(2) Norton Shpack Superfund Site Worked with the Board of Selectmen and the Towns Shpack Landfill Coordinator in negotiations with the Environmental Protection Agency (EPA), Army Corps of Engineers, Department of Energy, and various private parties identified as potentially responsible parties to determine a clean-up plan for the Shpack Landfill, a Superfund site. The remediation of this site is complicated by the presence of nuclear waste, as well as other contaminants, and numerous potentially responsible parties. She negotiated an agreement with the settling parties that was favorable to the Town. The Town was successful in persuading the EPA to adopt the level of remediation requested by the Town. They were also successful in persuading the EPA that the town should not be considered a potentially responsible party, thereby potentially saving the town hundreds of thousands of dollars in testing and remediation costs.

(3) Braintree OIB, Inc. v. Braintree ZBA Successfully defended the Board of Appeals decision to deny a comprehensive permit. The Housing Appeals Committee (HAC) upheld the Board of Appeals decision on the grounds that providing only one means of access to a proposed development of 118 houses created a safety concern that outweighed the need for affordable housing. This is one of the few cases in which the HAC has upheld the denial of a comprehensive permit by a board of appeals.

(4) Stoughton Marinelli v. Zoning Board of Appeals In this zoning appeal, Ms. Saint Andr successfully defended the towns interpretation of its zoning by-law relative to nonconforming lots. The case was of significance to the town because the plaintiff argued that the towns zoning bylaw granted grandfather protection to vacant lots far in excess of the protection provided by state law. Had the plaintiff prevailed, it would have opened up a number of lots previously considered not buildable for development.

(5) Hardwick Hardwick Landfill, Inc. v. Zoning Board of Appeals In this zoning matter, attorney Saint Andr successfully defended the determination of the Hardwick Building Commissioner, upheld by the Board of Appeals, that the Hardwick landfill had illegally expanded in violation of the Zoning By-law. She provided advice to the Building Commissioner, Board of Appeals, and Board of Selectmen throughout the process of review and appeal, attending Board of Appeals public hearings and assisting in drafting the Board of Appeals decisions on multiple appeals and applications filed by Hardwick Landfill, Inc. The cases were all successfully resolved in favor of the Towns position.

Christopher J. Petrini: Mr. Petrini has served as Town Counsel to the Town of Framingham since 2001, and is responsible for handling and overseeing virtually all of Framingham s legal affairs. Mr. Petrini also has provided municipal law legal services and handled litigation cases for a number of Massachusetts municipalities, including Medway, Sherborn, Braintree, Taunton, Falmouth, Rockland, Tewksbury, Sutton and other communities. Mr. Petrini is a past President of the Massachusetts City Solicitors and Town Counsel Association and serves on its Executive Committee. Mr. Petrini was one of 11 attorneys recognized as a New England Super Lawyer in 2009 and 2010 in the municipal field. Mr. Petrini also recently was selected as Co-Chair of the Massachusetts Bar Association Construction Law Committee. Mr. Petrini has extensive firsthand experience with the operations of local government and the unique challenges faced by local elected officials, having served as a Selectman for the Town of Framingham from 1996 to 2001 (board chairman 1998-99) and as a member of the Framingham School Committee from 1991 to 1996 (board chairman 1993-95). Mr. Petrini has substantial experience in addressing public construction, labor, general municipal and municipal litigation issues. Attached as Exhibit 3 is a copy of the firms brochure on our extensive Public Construction Practice Group, headed by Mr. Petrini. We have represented over 30 cities and towns on public construction projects and are recognized as a statewide expert on the subject. We are routinely asked to present and author publications regarding public construction. Last month we presented the Public Construction Law Update for the Massachusetts Bar Association and the City Solicitors and Town Counsel Association. Attached as Exhibit 4 is a PowerPoint presentation that we presented for this program. Mr. Petrini has extensive experience in litigation before trial courts (both state and federal) and state administrative agencies and has a demonstrated record of success in major municipal litigation and negotiations. His success in these matters has generated considerable attention in and outside of the Massachusetts legal community. Attached as Exhibit 5 a list of

13 front page Massachusetts Lawyers Weekly articles since 2003 in which Mr. Petrinis cases were highlighted, or in which Mr. Petrini was quoted as a legal expert. Examples of some of his high profile favorable outcomes include the following: (1) Town of Framingham v. Town of Ashland: In this case, the Department of Telecommunications and Energy found in favor of the Town of Framingham in modifying the sewage transport rate paid by the Town of Ashland to Framingham under an Intermunicipal Agreement. This decision resulted in an increase in payments by Ashland to Framingham from $5,500 annually to more than one million dollars annually in recent years. See Massachusetts Lawyers Weekly March 1, 2004, Page 1 article entitled Towns Must Split Costs for Sewage Expenses, attached as Exhibit 6. (2) Pelham Apartments v. Town of Framingham: In this case the Superior Court found in favor of the Towns motion for summary judgment which substantiated the Towns decision to discontinue trash removal services to an apartment complex consisting of nearly 550 units. This favorable determination by the Court has saved the Town at least $100,000 in trash collection costs annually since 2003. The Town also obtained a judgment on its counterclaim against the apartment complex which resulted in a $300,000 settlement paid to the Town in FY 2008. See Massachusetts Lawyers Weekly July 21, 2003, Page 1 article entitled Town Not Required to Supply Public Services to Developer, attached as Exhibit 7. (3) Calvao v. Framingham Police Officers FLSA Litigation: Mr. Petrini recently secured a significant Federal Court victory on a motion for summary judgment in a case brought by approximately 100 Framingham Police Officers against the Town of Framingham. The action seeks in excess of $1.5 million dollars in damages for alleged violations of the overtime provisions of the Fair Labor Standards Act. Although the officers based their claims upon the assumption that the Town was required to pay them at the overtime rate for hours worked in excess of 40 hours per week, the Towns motion for summary judgment successfully established that the Town was required to pay the officers overtime sums only for hours worked in excess of 147 over 24 days, in accordance with Section 207(k) of the FLSA. Judge OTooles decision represents a significant victory for the Town in this litigation, and likely reduces any potential liability on the part of the Town by several hundred thousands of dollars, if not entirely. See Massachusetts Lawyers Weekly, September 1, 2008, Page 1 Article entitled Police OT can be cut, attached as Exhibit 8. On appeal, the U.S. Court of Appeals for the First Circuit affirmed the District Courts order, securing a significant victory for Framingham and saving the Town $1.5 2 million dollars. See, Duarte Calvao, etalv. Town of Framingham, 599 F.3d 10 (1st Cir. 2010). This decision received national attention, and was featured on the front page of the Massachusetts Lawyers Weekly March 29, 2010 edition, as well as in the May, 2010 Edition of the Fair Labor Standards Handbook for States, Local Governments and Schools. Attached as Exhibit 9 is a representative sampling of the press that this decision received. Following such coverage the Fair Labor Standards Handbook asked Mr. Petrini to serve as its FLSA Legal Insider for its September, 2010 issue, and featured an article by Mr. Petrini in that issue entitled May Comp Time Be Provided for Gap Hours in Over-40-Hour Workweeks?
-

In addition to work on these matters, which have brought significant financial benefits to the Town, Mr. Petrini has handled several other noteworthy cases that have allowed the Town to implement significant policy changes in the face of organized opposition. For instance, he obtained an order dissolving a temporary restraining order preventing the implementation of a town wide smoking ban enacted locally and denying the Framingham Restaurant Associations motion for a preliminary injunction preventing enforcement of the policy on a long-term basis. See Massachusetts Lawyers Weekly May 26, 2003 Page 1 article entitled Bylaw Permitting Smoking Trumped by Board of Health, attached as Exhibit 10. Mr. Petrini has represented Framingham in several cases brought before the Massachusetts Commission Against Discrimination, including claims of discrimination and wrongful discharge, assertions of sexual harassment and the creation of a hostile work environment, and claims of handicap discrimination. He has provided advice or represented Framingham on a variety of labor relations issues, including G.L. c. 41, 1 hF claims, appeals of suspension, and the Fair Labor Standards Act (FLSA). Mr. Petrini also was recognized for an amicus curae brief he co-authored in the Supreme Judicial Court in the case of Suffolk Construction Co., Inc. v. Division of Capital Asset Management, 449 Mass. 444 (2007). This case involved an attempt by a contractor to obtain documents through public records requests that would have been regarded as attorney-client privileged material with respect to non-governmental parties. In his brief, Mr. Petrini advocated that governmental parties bodies are entitled to the attorney-client privilege like any other individual or governmental body. The Supreme Judicial Court adopted this argument, and affirmed that documents shared between a government party such as a municipality and its attorney were entitled to the protections of the attorney-client privilege. This case has been widely hailed as a landmark victory for Massachusetts municipalities. ~ Massachusetts Lawyers Weekly, July 23, 2007, Page 1 Article entitled Attorney-client privilege protects DCAM documents, attached as Exhibit 11. In July, 2010, the SJC issued a significant public construction law decision in Fordyce v. Town of Hanover, 457 Mass. 248 (2010), a case in which P&A attorneys Christopher Petrini and Peter Mello co-authored an amicus brief on behalf of the City Solicitors and Town Counsel Association. In Fordyce, the SJC affirmed the right of municipal officials to select the lowest eligible and responsible bidder in a case where a bidder included misstatements or omissions in its bid qualification submission, so long as the municipality did not detrimentally rely on the contractors misstatement or omission. Following the SJCs issuance of the decision, Mr. Petrini was quoted in a July 10, 2010 Boston Globe regarding the decision. A copy of the Boston Globe article is attached as Exhibit 12. Peter L. Mello: Mr. Mello also has extensive experience in various areas of municipal law, land use, zoning and public construction among others. Prior to joining Petrini & Associates, P.C., Mr. Mello was an associate with Kopelman and Paige, P.C., where he practiced civil litigation involving a full range of zoning and land use issues, including actions to enforce provisions of zoning bylaws, defending zoning board of appeals decisions on applications for special permits, variances, and comprehensive permits, defending decisions of conservation

commissions in certiorari actions, defending planning board site plan review and subdivision decisions, and defending municipalities in litigation challenging a municipalitys eminent domain authority. Mr. Mello has continued his emphasis in these areas since he joined Petrini & Associates in July of 2006, and has expanded his practice to include litigation work in public construction matters and labor law, among others. Mr. Mello s litigation experience has encompassed all phases of litigation in the state and federal courts, including preparation of discovery, preparation and argument on dispositive motions, trial, and attendance at executive session meetings to advise client municipal boards. Throughout his career Mr. Mello has also worked in several transactional matters and has drafted a number of opinions advising town boards and municipal clients on a variety of municipal law issues, including with respect to special permit review, variance applications, eminent domain, subdivision review, contract disputes, employment matters, licensing issues, application of the Massachusetts Tort Claims Act, the Massachusetts Conflict of Interest Law, the Open Meeting Law, the Home Rule Amendment and civil rights issues. Mr. Mello is a member of the Massachusetts City Solicitors & Town Counsel Association and serves on the editorial committee of the City Solicitors and Town Counsel Associations quarterly Newsletter. He is also a regular contributor to the Newsletter. Heather C. White: Ms. White practices general municipal law, including land use and zoning, municipal real estate transactions, bylaw enforcement, conservation, open meeting law, and public records. Prior to joining Petrini & Associates, Ms. White was an associate with Brackett & Lucas specializing in municipal law for several years and served as lead counsel to several towns and districts during her time there, including Princeton, Berlin, and Leicester Water Supply District. She has extensive experience in land use litigation, including zoning enforcement and public procurement, and has authored appellate briefs and argued before the Massachusetts Appeals Court on numerous occasions. Ms. White has completed two Inspector Generals Massachusetts Certified Public Purchasing Official (MCPPO) courses, including the Public Contracting Overview and Design and Construction Contracting. She frequently advises clients on bidding and contracting issues pursuant to G.L. c. 30, 30B, and 149. Currently she is working on developing updated templates for design contracts and construction contracts. She has also handled several bid protests. Ms. White is the President of the City Solicitors and Town Counsel Association and a member of the Associations Executive Committee. She has served on the Public Law Section Council of the Massachusetts Bar Association. She has been a speaker on municipal law topics for various educational programs sponsored by Massachusetts Continuing Legal Education and the City Solicitors and Town Counsel Association and is the co-author of the article Recent Decisions under the Comprehensive Permit Law, Section Review (Mass. B. Assn, Boston, M.A.)Vol. lONo. 12008. Christopher L. Brown: Mr. Brown joined Petrini & Associates, P.C. in 2010 and focuses his practice on general civil litigation, municipal law, and employment law. Prior to
8

joining our firm, Mr. Brown was an associate with the Boston law firm of McDonough, Hacking & Lavoie, LLC, where he practiced civil litigation in state and federal courts. Mr. Browns litigation experience includes public construction, eminent domain, insurance defense, personal injury, motor vehicle torts, environmental matters, bad faith insurance claims, and general business disputes. Attorney Brown has represented management-side clients in grievance arbitration and advised public employer clients with regard to appointing authority hearings under G.L. c. 31 s. 41 and interpretation of collective bargaining agreements. Outside of union issues, Attorney Brown has also advised both public and private employers with regard to employment issues including review and development of personnel policies, termination and severance agreements, FMLA leaves, retirement, and workers compensation issues. Prior to his legal career, Mr. Brown served as a field artillery Lieutenant and Captain in the United States Army, deploying to Germany and Kosovo while on active duty. Mr. Brown is a member of the Massachusetts City Solicitors & Town Counsel Association and the Massachusetts Bar Association. Mr. Brown was named in 2009 and 2010 New England Super Lawyers Rising Stars Edition. Only 2.5% of lawyers with less than 10 years of practice or who are under 40 years old were selected.

6. Please describe how you propose to satisfy the Accessibility requirements of the RFP. As principal attorney, Attorney Saint Andr will promptly respond to telephone calls and emails from authorized officials, which in no event will be later than 24 hours. If she is unavailable, one of the other attorneys will act as back-up. All requests for written opinions will be provided within one week unless the circumstances of the opinion warrant a shorter or longer time frame for a response. Counsel will be available to be present at meetings or hearings of the Board of Selectmen or other boards, committees or officials when approved. All matters referred to the firm for prosecution will be promptly addressed. Attorney Saint Andr will personally provide or personally supervise the provision of all legal services necessary for the proper and efficient conduct of the Towns affairs. Namely, she will personally keep the Board of Selectmen and Town Manager fully apprised of the status of all legal matters affecting the Town by frequent oral and written reports. 7. Please describe how you propose to satisfy the Back-up requirements of the RFP. As Town Counsel, we would ensure that the Town received the full benefit of our substantial expertise, resources and repository of attorney work product. To that end, each of the firms attorneys would be available to advise and represent the Town in matters pertaining to the respective attorneys expertise. For purposes of organizing communication with the Town, Attorney Saint Andr would be the primary contact for the Town. Although in this capacity she
9

would personally be available to attend to all telephone calls from the Town, and to initially process all inquiries, in her absence the immediate back-up contact for the Town would be Mr. Petrini. Mr. Mello, Ms. White, and Mr. Brown are also well-qualified to serve as back-up counsel in accordance with the criteria set forth in the RFP as described above. 8. What factors might prevent you from attending every session of Annual and Special Town Meetings and an occasional Board of Selectmens Meeting on Monday evenings? As we do with each of our clients, we would plan to attend all Annual and Special Town Meetings, as well as any Board of Selectmen meeting that we are asked to attend. Our attorneyto-client ratio allows us to integrate new clients comfortably, while maintaining our emphasis on responsive and personalized service. If Attorney Saint Andr is unavailable to attend a meeting in the rare instance of an emergency or scheduling conflict, Attorney Petrini or one of the other attorneys would be available to attend. 9. Would you be available to review and approve as to form and content all contracts to which the Town is a party? Yes. 10. How would you conduct or oversee all litigation, including administrative proceedings, in which the Town and its boards are involved in their official capacity, to the extent such legal services are not provided by the Towns insurance carriers? We would conduct or oversee all litigation (except tax title litigation, which we do not handle) and administrative proceedings in a proactive, zealous and cost effective manner. Although each case requires an individualized strategy, our general approach is to be as proactive and thorough as possible in discovery and other litigation events. We find that an aggressive style often is the most effective way to seize control of a dispute and steer a case in our clients favor. As is reflected in our above responses, our attorneys have extensive experience in all types of municipal litigation, and we have enjoyed tremendous success for our clients over the years. Our litigators experience and expertise allows us to assign cases to lawyers who can comfortably and reliably handle cases on their own. As a result we can manage litigation costs more easily than our competitors by minimizing the number of lawyers working on a given matter. We would apply these principles and practices in representing Duxbury. 11. How would you be able to provide training to Town employees and Boards, commissions and committees in such topics as Open Meeting Law, Public Records law, and requirements for calling Executive Sessions for example? P&A Attorneys have conducted trainings and seminars in many of the towns they have represented over the years, and found that they can be very helpful in educating town officials and thereby avoiding potential future legal issues. We will offer to provide the following four seminars (which can he adjusted in accordance with the Towns preferences):

10

Open meeting law, public records, and ethics Land use forum Overview of Civil Rights Laws Contracting and bidding.

These seminars can be held either in the evening, primarily for board members, or during the day, primarily for staff. In addition, we would have transitional meetings with the Town Manager and other staff, including a review of key points that we look for in contract review, at no additional cost to the Town. We also send periodic updates to our municipal clients on new developments in municipal law. 12. Please identify any past or current clients that may give occasion to a conflict of interest to arise as a result of representing the Town of Duxbury. We do not represent any municipalities that abut Duxbury and perceive no likely conflicts. If a conflict arose we would refrain from participating in the matter unless both clients consented in accordance with applicable provisions of the Massachusetts Rules of Professional Conduct.

11

II.

FEES AND EXPENSES RESPONSE SHEET 1. Please list the name and hourly rate for proposed Town Counsel and for each attorney intended or likely to serve as back-up. As described below, Petrini & Associates proposes to provide Basic Town Counsel Services under a retainer arrangement. Hourly rates for work on matters outside of the retainer are as set forth below. Please note that we will not charge the Town for travel time to and from Town Hall, unless the travel occurs during normal working hours, which will provide a savings in costs to the Town. Town Counsel services will be billed on an hourly basis as follows: 1. BarbaraJ. Saint Andr: 2. Christopher J. Petrini 3. Peter L. Mello: 4. Heather C. White: 5. Christopher L. Brown: $190.00 $210.00 $175.00 $175.00 $175.00

In addition to the discounted rates set forth herein, we also will provide courtesy discounts and write off time for litigation matters if warranted. Also, please note that we do not bill the town for any transition time. This means that, if there is a pending litigation or other matter, we will review the file and get up to speed at no cost to the Town. Transitional meetings, such as with former town counsel and/or town officials if needed, are also at no charge. P&A attorneys have developed a strong track record of staying within budgets and delivering quality legal services in an equally or more efficient manner than other firms with lower published hourly rates. This is because P&A attorneys are experienced and take the time to get to know the specific needs of their clients, unlike other firms who may have lower hourly rates but assign work to junior associates who end up taking more time to complete the task than P&A attorneys would, thus costing towns more in the end. Moreover, P&As billing policies contain a number of client friendly provisions that further reduce the overall costs of legal services, such as not charging for travel time during non-business hours, not charging for transition work, offering free seminars, etc. Moreover, the fixed fee retainer proposal of $50,000 for Basic Town Counsel Services will assuredly result in discounts for Duxbury that will have the effect of significantly reducing P&A s actual hourly rate. $c~ Section, H.6 below. In accordance with Duxburys billing requirements, a monthly statement for legal services will be provided to the Town. The statement will disclose the date of the service, the identity of the lawyer or staff person performing the service, the subject matter reference for the service, a description of the service performed, the time it took to perform that function, and the hourly rate for the individual performing the function. Expense items also will be itemized for reimbursement for the actual cost to the firm. No mark-up will be charged to the Town for expenses.

12

2. If you propose to bill for services provided by paralegals, clerical staff, or other non-attorney personnel, please list by title and by hourly rate each position for which you may bill. 1. Clerical Staff: 2. Paralegals: NO CHARGE $75.00

3. Please provide a complete listing of all charges for out-of-pocket expenses you intend to impose as incurred (i.e. any and all copy charges, telephone charges, fax charges, mileage charges and the like, but excluding any fees for stenographers, court fees, service fees and the like). Copy Charge Telephone Charge Fax Charge Mileage Tolls and Parking Postage 200 per Page NO CHARGE NO CHARGE IRS Rate Actual Cost Actual Cost

All other out of pocket expenses, such as court fees, will be billed at cost with no mark-up. We also make extensive use of electronic mail in order to save postage and copying charges to the Town. 4. In what hourly increments do you intend to bill? We will bill in tenths (1/10) of an hour. 5. Do you bill attorney time out of the office on a portal-to-portal basis or some other basis? Please describe. As mentioned above, we will not charge the Town for travel time to and from Town Hall, unless the travel occurs during normal working hours. For travel during business hours, or travel time to and from points other than Town Hall, attorney time will be billed on a portal-to-portal basis, measured as the time which elapses between departure and arrival. 6. Do you intend to propose an alternative fee arrangement? Yes No If yes, please attach additional sheet(s) fully describing and explaining your proposal.
~ .

Petrini & Associates proposes to provide all Basic Town Counsel Services (basic services) to Duxbury for a yearly fixed fee lump sum retainer of $50,000, plus out of pocket expenses at cost, with litigation, real estate transactions, comprehensive permits, labor, and construction and building committee excluded from basic services. Basic services include the following (if not related to an excluded matter): providing written opinions as requested by the town through the Town Manager; review of town meeting warrants and drafting articles and motions; preparation for and attendance at Town Meetings, meetings of the Board of Selectmen

13

or other town boards and committees as requested; drafting and/or review of documents, covenants, and other legal instruments; by-law drafting; telephone conferences, meetings, and consultation with Town Officials; and related basic services. The firm does not perform tax title services and therefore the Town would need to retain outside counsel for these services. By virtue of this proposal, Duxbury is provided cost certainty for all basic services. Should P&A be selected as Town Counsel and our services subsequently renewed, we reserve the option to adjust the fixed fee and hourly rates in future years, to be mutually agreed upon with the Town.

14

CERTIFICATION By my signature, I certify that the information contained in this Response to Request for Proposals is complete and accurate, to the best of my knowledge and belief.

Signed:

Date:

Oci- ~

2012 10.05 Duxbury Response (2700-06)

Attachment A Municipal Law Experience Checklist Rate your experience in the following areas of municipal law using the scale below 1. 2. 3. 4. No experience Limited experience Moderate experience Advanced experience 5. Extensive experience

Zoning G.L. c. 40A Chapter 40B Affordable Housing Chapter Lands G.L. c. 61, 61A 61B (and rights of&str~fusa1) Educatign G. L. c. 70, 71, 72, 74,76 Community Preservation Act (IL. c. 44B Municipal Finance _f_ Liqi~ior Licensing j Conduct of Open To~i Meeting $~ Subdivision Control Law ~ Public Bidding and Construction Law 5 Jntemal hrvestigations within Municipality ~ Land Acquisitions by Municipality Open Meeting Law Conflict of Juterest Law ~ Wetlands Regulation (State and Local) ,3~ Oil & Hazardous Waste Contamination G.L. c. 21E ~ ~ ~ 5 ~

~r

_~

Attacbment B Statement of Litigation Experience Rate Your Experience Practicing with the following Courts, Boards and Commissions based on the stale listed below. 1. 2. 3. 4. No cip~ience Limited experience. Moderate experience Advanced experience 5. Extensive experience

5
S ~
_____

~ ~S ~t tL F

Trials before State Courts (District, Superior, Land Courts) Trials before Federal District Courts Appeals before Massachusetts Appeals Court Appeals before Massachusetts Supreme Judicial Court Administrative Proceedings before Massachusetts Civil Service Commission Arbitratio~i Proceedings Mediation Proceedings Administrative Proceedings before Massachusetts Appellate Tax Board Administrative Proceedings before Massachusetts Department of Environmental Protection Administrative Proceedings before the A]3CC Administrative Proceedings before the Housing Appeals Committee Administrative Proceedings before Division of administrative Law Appeals

Exhibit 1

CHRISTOPHER J. PETRINI Petrini & Associates, P.C. 372 Union Avenue Framingham, MA 01702 Tel. (508) 665-4310, Fax (508) 665-4313 www.petrinilaw. corn cpetrini@petrjnjlaw. corn I. EMPLOYMENT A. 2004-Present Le2al Employment & Municipal Counsel Appointments PETRINI & ASSOCIATES, P.C. Framingham, MA Founding Principal Manage a five attorney public law firm specializing in municipal law, public construction, land use and zoning TOWN COUNSEL, TOWN OF FRAMINGHAM Framingham, MA Handle or supervise all litigation and legal affairs for the Town of Framingham TOWN COUNSEL, TOWN OF MEDWAY Barbara J. Saint Andr of Petrini & Associates is designated Attorney for Town of Medway TOWN COUNSEL, TOWN OF WEST BROOKFIELD Barbara J. Saint Andr of Petrini & Associates is designated Attorney for Town of West Brookfield TOWN COUNSEL, TOWN OF SHERBORN Barbara J. Saint Andr of Petrini & Associates is designated Attorney for Town of Sherborn NASHOBA REGIONAL SCHOOL DISTRICT Provide labor and general counsel services to Nashoba Regional School District in Bolton, Massachusetts SPECIAL COUNSEL, PUBLIC CONSTRUCTION Barnstable (2010) Braintree (2009-2010) Falmouth (2006-2009) Franklin (2012) Framingham High School Building Committee (2002-2009) Holbrook (2006-2008)

2001-Present

2007-Present

2010-Present

2010-Present

2007-Present

2000-Present

Mansfield (2000-2002) Mansfield Municipal Electric Light Department (2001-2002) Needham (2010) Rockland (2010-Present) Stow (2010-present) Taunton (2003-20 10) Tewksbury (2008-Present) Tn-Town Board of Water Commissioners (2005-2007) Weymouth (2005, 2011) West Springfield (2011) 2006-Present OTHER SPECIAL COUNSEL ASSIGNMENTS Weymouth (2011-Present) (sex offender bylaw challenge) Abington Board of Sewer Commissioners (2011-Present) (IMA) Attleboro (2006) (land use/zoning) Dighton (2010) (employment) Franklin Regional Council of Governments (2009) (public records) Holden (2007-08) (IMA) Marlborough (2009) (charter) Sutton (2006-08) (labor/municipal) B. 1993-2004 Past Le~aI Employment CONN, KAVANAUGH, ROSENTHAL, PEISCH & FORD, L.L.P., Boston, MA Boston, Massachusetts Partner, 19982004 Member, Management Committee Co-Chair, Construction Practice Group Co-Chair, Hiring Committee Associate, 1993-1997 H1NCKLEY, ALLEN & SNYDER, Boston, MA Litigation Associate, Construction Department UNITED STATES COURT OF APPEALS, EIGHTH CIRCUIT Law Clerk to Honorable Theodore McMillian, St. Louis, MO Drafted opinions on criminal, employment, securities, civil rights, and statutory matters. Several opinions received national attention. SONNENSCHEIN, NATH & ROSENTHAL, Chicago, IL Litigation Associate, Litigation and Employment

1990-1993

1989-1990

1987-1989

II. EDUCATION Legal: DUKE UNIVERSITY SCHOOL OF LAW, Durham, N.C. Juris Doctor with High Honors, 1987 Law and Contemporary Problems, Staff Editor, 1986-87 Co-Chair, Forum for Legal Alternatives, 1984-86 DUKE UNIVERSITY GRADUATE SCHOOL Master of Arts, Philosophy, 1987 (3.8 GPA) GEORGETOWN UNIVERSITY, Washington, D.C. A.B., Cum Laude, 1983 (3.6 G.P.A.) Double Major: Philosophy & Government MacNamee Ethics Award Recipient, 1983 Rhodes Scholar Nominee: State Finalist, 1982

Graduate:

Undergraduate:

III. BAR ASSOCIATIONS


*

Massachusetts Bar Association


*

Co-Chair, Construction Litigation Committee, Civil Litigation Section Council (2010-Present) Member, Public Law Section Council, 2004-2007 Member, Law Practice Management Council, Massachusetts Bar Association, 2004-2006 Member, 1990-Present Massachusetts City Solicitors and Town Counsel Association

President 2009-2010 Member, Executive Committee 2005-Present Member, 2002-Present

International Municipal Lawyers Association Member, 2002-Present

IV. PUBLICATIONS
*

Ten Do s and Don tin Public Procurement and Construction ~ Annual Municipal Law Conference (MCLE 2012) Whats Up with the Attorney-Client Privilege? Recent Developments in the Wake ofSuffolk Construction v. DCAM~ Massachusetts Lawyers Journal, August 2011, pp. 15, 17 (with Heather Kingsbury)

Notice: Pleasantville Considers New Open Meeting Law, Massachusetts Bar Association Section Review, Vol. 12, No. 3 (2010) (with Heather Kingsbury)

May Comp Time Be Providedfor Gap Hours in Over 40 Hour Workweeks? Fair Labor Standards Handbook (Thompson Publishing Co., Inc. September 2010)
,

Secrets To A Successful Public Construction Project, Massachusetts Municipal Law (Chapter 14) (2002, 1st Supplement 2008, 2~x~ Supplement 2012) (with Jane B. Estey.) The Owners Perspective on the 2007 Changes to the AlA Documents, Standard Form Construction Contracts (McNamara, J., Ed.) (MCLE 2008)

The Attorney-Client Privilege Between Municipalities and Their Counsel in Light of Suffolk Construction Co., Inc. v. Division ofCapital Asset Management, 449 Mass. 444 (2007), 6th Annual Municipal Law Conference 2008, pp. 23 1-37 (Lampke, J. and Ritchie, R., eds.) (MCLE 2008) When Your Public Construction Project Goes Bad, 5th Annual Municipal Law Conference 2007 (Lampke, J. and Ritchie, R., eds.) (MCLE 2007) Private Construction Contracts, Massachusetts Construction Law and Litigation, (Peloquin, J., ed.) (MCLE 2006) Privileges at Risk: Restoring the Rights of the Public Sector Client, Massachusetts Lawyers Weekly, April 24, 2006 Local Health Boards Empowered to Promulgate and Enforce Smoking Bans in Face of Contrary Town Bylaw, Framingham Restaurant Association v. Town of Framingham, Massachusetts Bar Association Section Review, 2003 MBA Section Review, Vol;. 6, No. 1, p. 51. Recent Developments in Scrutiny ofMunicipal Actions, Municipal Law Conference 2002 (Section 8) (MCLE 2002) What Do You Do When OSHA Comes Knocking At Your Door, Boston Business Journal, (October 5-11, 2001) (with James B. Peloquin) What Do you Do With a Defective Bid? in Massachusetts Construction What do You do When...? (National Business Institute 2000) Law:

What Do you Do When the Plans and Spec~Ications are Deficient? in Massachusetts Construction Law: What do You do When.. .? (National Business Institute 2000)

What Do you Do When it is Time to Sign the Contract? in Massachusetts Construction Law: What do You do When.. .? (National Business Institute 2000)

Key Changes in Contract Benefits and RiskAllocations Effected by 1997 Revisions to AlA Forms, in Current Developments in Massachusetts Construction Law (MCLE 1999) An Owner s Perspective in Negotiating and Drafting Construction Contracts (MCLE 1998) Drafting Construction Contracts: Subcontractor s Perspective in Construction Contracts: Building Them Up and Tearing Them Down (MCLE 1997)

Batson v Kentucky: A Promise Unfulfilled, 58 U.Mo.K.C. L. Rev. 361 (1990) (with the Honorable Theodore McMillian) Drug Testing and Public Employment: TowardA Rational Application Of The Fourth Amendment, 51 Law & Contemp. Probs. 253 (1988) (with James E. Felman)

V. LEGAL EDUCATION: FACULTY APPOINTMENTS AND SERVICE A. Construction Seminars and Programs 1.
*

Program Chair or Moderator

Moderator, Avoiding Traps for the Unwary on Public Construction Projects, Massachusetts City Solicitors and Town Counsel Association Annual Meeting (April 2012) Moderator, Meet the In-House Counsel, MBA Civil Litigation Section Construction Law Committee Seminar, (July 2011) Chair, The Municipal Counsel and Public ConstructionCommon Issues Faced by Municipal Counsel, Massachusetts City Solicitors and Town Counsel Association Annual Meeting (April 2011) Co-Chair, From the Nuts and Bolts to the Cutting Edge: What Construction Lawyers Need to Know, MBA Civil Litigation Section Council Construction Law Committee Seminar (December 2010) Co-Chair, Annual Trial Practice Program: Bid Protests--The Law and Practical Tips for Defending a Protest, Massachusetts City Solicitors and Town Counsel Association Annual Meeting (October 2008)

Chair, Contracts Checklist, Massachusetts City Solicitors and Town Counsel Association Monthly Meeting (May 2006)

Chair, Public Clients Views of the AlA Contract Documents, Build Boston 2005 Seminar, Boston Society of Architects (November 2005) Program Chair, Construction Reform: One Year Later, (September 2005) Massachusetts Bar Association Program Chair, Negotiating and Drafting Construction Contracts: Building Them Up and Tearing Them Down, (MCLE 1998) Moderator, Updates on Public Construction, Litigation and Procurement, Massachusetts Municipal Association Annual Meeting (2000) 2. Faculty Member, Panelist or Speaker
. .

Speaker, Ten Dos and Donts of Construction Procurement. or Trekking in Nepal? 10th Annual MCLE Municipal Law Conference Update (2012); Speaker, The Public Construction Process, Public Law Conference, June 2010, (MCLE: Dealing Effectively with and for Municipalities); Panelist, Improving The House Odds: Risk Allocation in Construction Contracts, 2008 International Municipal Lawyers Association Annual Meeting (Las Vegas, Nevada) Panelist, Standard Form Construction Documents: The Owners Perspective (MCLE 2008)

S~eaker, The Attorney-Client Privilege: Practical Tips for its Implementation, 6t Annual MCLE Municipal Law Conference (2008) Speaker, What to Do When Your Public Construction Project Goes Bad, ~ Annual MCLE Municipal Law Conference (2007) Speaker, Public Construction Update, Conference (2006)
4th

Annual MCLE Municipal Law

Faculty Member, Massachusetts Municipal Association Forum on the New Public Construction Law, College of the Holy Cross, (November 2004) Speaker, Overview of the Recently Enacted Public Construction Reform Act, Chapter 193 of the Acts of 2004, City Solicitors and Town Counsel Association Seminar (September 2004)

Panelist, How to Evaluate, Prosecute and Defend Construction Tort Cases (MCLE 2003) Panelist, Public Construction: Critical Issues for Municipalities (sponsored by Conn Kavanaugh) (May, 2002) Faculty Member, Massachusetts Construction Law: What Do You Do When. . .? (National Business Institute 2000 and 2001) Panelist for Various MCLE Seminars on Various Construction Law Topics, (MCLE 1997 and 1999)

Faculty Member, Construction Claims (American Institute for Professional Training and Development, 1997) B. Municipal Law and Employment Law Topics (Chair or Panelist)

Co-Chair, Open Meeting Law Update, Conference (2011)

9th

Annual MCLE Municipal Law

Panelist, Update on the New Open Meeting Law, Massachusetts Municipal Association Annual Conference (with Britte McBride, Director of Open Government, Office of Attorney General) (2011) Panelist, The New Open Meeting Law, 8~ Annual MCLE Municipal Law Conference (2010) Co-Chair, CSTCA Summer Meeting 2010, Cutting Edge Technology Panelist, Freedom of Information & Public Records Law, (MCLE, Inc. 2009) Chair, The FLSA and the 29 U.S.C. 207(k) Public Safety Employee Exemption--the recent Framingham Federal District Court Work Period Case and the City of Boston SJC Impact Bargaining Cases and How They Affect Your Community, City Solicitors and Town Counsel Association Monthly Dinner Meeting (May 2009) Chair, Open Meetings and Public Records, 7th Annual MCLE Municipal Law Conference (2009) Moderator, Ensuring that Town Hall Doors (and Files) Are Open, Massachusetts Municipal Association Annual Meeting (2009) Panelist, Document Management in the Electronic Age, Massachusetts Municipal Management Association Monthly Meeting (October 2008)

Co-Chair, Insurance Issues, City Solicitors and Town Counsel Association Monthly Meeting (January 2007)

Panelist, Managing Town Counsel Services, Massachusetts Municipal Managers Association Monthly Meeting (February 2006)

Panelist, Survivors Guide to the Open Meeting and Public Records Laws, Massachusetts Municipal Association Annual Meeting (2006) Panelist, Local Board Regulations v. Town Meeting-City Council Authority: Which Govern?, City Solicitors and Town Counsel Association Seminar (November 2003) Panelist, Recent Developments in Scrutiny of Municipal Actions, MCLE Municipal Law Conference (Sept. 2002)
1st

Annual

Panelist, Massachusetts Association of Planning Directors Annual Conference, Seminar on Community Preservation Act (2001) Presenter, Annual Pavement Maintenance Expositions (1997 and 1999) (handicap discrimination laws, handicap access regulations, and collections) Speaker, Insurance Women of North America (sexual harassment law and Employment Practices Liability Insurance) (1999) C. Other

Panelist, Serving the Public Through Private Practice: Careers in Private Public Interest Law Firms, Boston University Law School & Mid-Sized Firm Week (February 14, 2012) Co-Author, Amicus Brief for City Solicitor and Town Counsel Association in Supreme Judicial Court case of Suffolk Construction Co., Inc. v. Division of Capital Asset Management, 449 Mass. 444 (2007), wherein the SJC adopted the Associations position and found that the attorney-client privilege applies to communications between governmental and municipal lawyers and their clients Speaker, Portrait Unveiling Ceremony for the Honorable Theodore McMillian, United States Circuit Judge, St. Louis University Law School (October 2006) Assistant to Public Works Subcommittee, Massachusetts Municipal Association (MMA 2004) Draft various construction reform legislation provisions for Massachusetts Municipal Association for 2003 -04 Legislative Session, including Design-Build Legislation enacted within Chapter 193 of the Acts of 2004 In addition to serving on a number of legal education panels in recent years, I also attend numerous continuing legal education and professional development 8

seminars sponsored by organizations such the Massachusetts City Solicitors and Town Counsel Association, the International Municipal Lawyers Association, MCLE and other organizations. The seminars I have attended include programs on employment law, professional liability, construction law, municipal law, zoning and land use, school law, and environmental law. VI. COMMUNITY SERVICE
*

Massachusetts Turnpike Authority Advisory Board, Member, 1997-2002, Chairman, 1997-99 (Gubernatorial Appointment) Framingham Board of Selectmen, Member, 1996-200 1, Chairman, 1998-99 Framingham School Committee, Member, 1991-1996, Chairman, 1993-95 Framingham Partners in Education, Founder & Trustee, 199 1-97, 2000 2003 Metrowest Health, Inc., Trustee, 200 1-2004 Danforth Museum of Art, General Counsel and Trustee, 1995-200 1 Knox Trail Council, Boy Scouts of America, Board of Directors, 1997-2001, 2004-Present, Vice-President, Endowment, 2008-Present Democratic State Committee, Member, 1996-1998 Voter Protection Organizer, Barack Obama and John Kerry Presidential Campaigns (2004 and 2008)

VII. HONORS & AWARDS


*

New England Super Lawyer, Government, Cities, Muncipalities (2009 and 2010) (selected by Thomson-Reuters for Municipal Law, only 5% of attorneys selected for this honor)

AV Attorney Rating, Martindale-Hubbell (1999-Present). The AV Rating is the highest possible professional rating available under Martindale-Hubbells Peer Review Rating System.
*

Recognized as Top-Rated AV Preeminent Lawyer in Mass Tort Litigation (sponsored by The American Lawyer) (2012)

Robert W. Ritchie Special Achievement Award for Service to Municipal Law Awarded by Massachusetts City Solicitors and Town Counsel Association June, 2008 Salute to Framingham Award, 2002 9

Knox Trail Council Good Scout Award, 2003 Eagle Scout, Troop 3 Framingham, 1976 Life Member, National Eagle Scout Association Additional information regarding professional associations, publications, and pro bono and public service activities available upon request

Last Updated: 5/24/12 2012.05.24 Petrini Curriculum Wtae (2700-0 7)

10

BARBARA J. SAINT ANDR Petrini & Associates, P.C. 372 Union Avenue Framingham, MA 01702 (508) 665-4310 bsaintandre(~petrinj1aw.com LEGAL EXPERIENCE Petrini & Associates, P.C., Framingham, Massachusetts Principal, 2006 to present Concentrate in municipal practice with emphasis on general municipal law, land use, comprehensive permits, and litigation. Represent cities and towns as counsel and special counsel in all areas of municipal law, including zoning, permitting, litigation, Subdivision Control Law, wetlands, affordable housing, board of health, enforcement, town meetings, contract, licensing, and Open Meeting Law. Tried cases before the Land Court, Superior Court, Housing Appeals Committtee, Alcoholic Beverages Control Commission, and other courts and state agencies. Kopelman and Paige, P.C., Boston, Massachusetts Principal, 1985 to 2006 Concentrate in municipal and land use law and litigation. Advise officials and represent municipalities and housing authorities in administrative and state and federal court litigation in all areas of municipal law, including: zoning and land use, board of health, comprehensive permits, housing, Civil Service, Wetlands Protection Act, Subdivision Control Law and licensing and employment issues. Tried numerous cases before the Superior Court and Land Court, and represented towns in dozens of appeals before the Housing Appeals Committee. Conduct seminars for client municipalities in a broad range of issues, including comprehensive permits, land use, licensing and open meeting law. Argued cases before the Appeals Court and Supreme Judicial Court. Murphy, Lamere and Murphy, Braintree, Massachusetts Associate, 1982 to 1985 In this general practice law firm, concentrated in litigation, municipal and labor law. Represented numerous municipalities in labor issues, including strike petitions, Labor Relations Commission, Civil Service, and arbitration, and extensive court appearances. Massachusetts Superior Court, Boston, Massachusetts Law Clerk, 1981 to 1982 Law clerk to justices of the Superior Court in the Superior Court of Suffolk and other counties. Researched and drafted memoranda in all types of civil and criminal litigation. Worked closely with a number of Superior Court Justices in both trial and motion sessions. PROFESSIONAL MEMBERSHIPS Admitted to Massachusetts Bar, 1981; U.S. District Court (Mass.), 1982; U.S. First Circuit Court of Appeals, 1982; Court of Appeals for D.C. Circuit, 1990; U.S. Supreme Court, 2012 Massachusetts Bar Association, Past Chair of Public Law Section Council Member, Real Estate Bar Association Member, City Solicitors and Town Counsel Association

EDUCATION Suffolk University Law School, Boston, Massachusetts Juris Doctor, cum laude, 1981 Suffolk University, Boston, Massachusetts Bachelor of Science, summa cum laude, 1979 MUNICIPAL OFFICE Elected Town Meeting Member, 1976 to 1997 Housing Authority, 1985 to 1994 Finance Committee, 1983 to 1984; 2012REPRESENTATIVE SPEAKING ENGAGEMENTS Massachusetts Association of Planning Directors 2012, 2011, 2010, 2009 and 2008 Annual Conferences, Recent Court Decisions 2009 Annual Conference: All You Ever Wanted To Know About Subdivision Guarantees 2011 Annual Conference: Everything You Should Have Told Town Counsel in the First Place

City Solicitor and Town Counsel Association 2008: Chapter 40B Cases: Are You Ready? 2009: Land Use Practice Pointers 2010: Regulation of Wireless Communications 2011: Municipal Trial: Evidentiary Proof in Chapter 40B appeals

New Regulations and

Southern New England Chapter, American Planners Association 2007 Fall Conference: Planning for Impacts of Increasing Immigrant Populations on Local Government Massachusetts Citizen Planner Training Collaborative 2007 Annual Conference State of Chapter 40B: The Massachusetts Affordable Housing Zoning Law 2008 Annual Conference Chapter 3 OB Public Procurement 2009 Annual Conference Site Plans and Special Permits; Establishing and Enforcing Subdivision Security 2010 Annual Conference Planning By Chance: Spot Zoning and Use Variances 2011 Annual Conference Zoning Exemptions; Everything You Should Have Asked Town Counsel in the First Place 2012 Annual Conference How to Draft and Enact A Zoning Amendment Writing Reasonable and Defensible Decisions

The

Massachusetts Citizen Planner Training Collaborative Taught various modules, including: Special Permits and Variances Approval Not Required Plans Site Plan Review Subdivision Control/ANR Introduction to the Zoning Act Vested Rights and Nonconforming Uses and Structures Roles and Responsibilities of Planning Boards and Zoning Boards of Appeal Writing Reasonable and Defensible Decisions
2

American Bar Association, Section of State and Local Government Law Meeting: Chapter 40B

2005 Fall Council

Massachusetts Continuing Legal Education Immigration Issues Facing Local Governments; Comprehensive Permits Municipal Overview of Procedures and Enforcement 2010 Environmental and Land Use Law Update

Massachusetts Bar Association Recent Changes in the Comprehensive Permit Process for Developing Affordable Housing

Boston Bar Association 2010 Permit Extension Act Massachusetts Health Officers Association Public Records versus Privacy Concerns; Regulations: The Good, the Bad, and the Ugly

Massachusetts Chapter National Association of Housing & Redevelopment Officials New State Regulations on Local Housing Initiatives and Certification under Chapter 774 Responsibilities of Public Officials: Conflict of Interest, Open Meetings and Public Records

Central Massachusetts Regional Planning Commission Subdivision ControlRelevant Issues and Strategies for Improving Local Review

REPRESENTATIVE PUBLICATIONS Massachusetts Municipal Law, chapter 32, Land Use Regulations co-author (MCLE 2012) Chapter 40A and General Land Use Law, ENVIRONMENTAL AND LAND USE LAW UPDATE (MCLE 2010) Immigration Issues Facing Local Governments, MUNICIPAL LAW CONFERENCE 2007, (MCLE 2007) Municipal Concerns, Procedures and Enforcement, OBTAINiNG AND ENFORCiNG COMPREHENSIVE PERMITS, (MCLE, Inc. 2003). Municipal Concerns, OBTAINING COMPREHENSIVE PERMITS, (MCLE, Inc. 2002). MAHB Legal Handbook for Boards of Health, Chapter II, Organization and Administration of Health Boards, 1995. Board of Health Betterments, massHealth, February 1995; How to Write a Regulation, massHealth, January 1989. Recent Subdivision Control Cases, Massachusetts Bar Association Section News, Winter 1991. Requirements for Keeping Minutes of Meetings, Massachusetts Bar Association Section News, October 1991.

REPRESENTATIVE APPELLATE CASES Cumberland Farms. Inc. v. Walpole Zoning Board of Appeals, 61 Mass. App. Ct. 124 (2004) Successfully defended Board of Appeals denial of special permits to alter and extend the nonconforming use of the property. Fanta v. Board of Health of Braintree Rule 1:28 (2006) Successfully defended Board of Health against challenge to tobacco sale regulations.
-

Marinelli v. Board of Appeals of Stoughton, 65 Mass. App. Ct. 902 (2005) Plaintiff unsuccessfully argued that the Stoughton Zoning By-law should be interpreted to allow grandfathered lot protection more generous than state law. Wyman v. Grafton, 47 Mass. App. Ct. 635 (1999) Successfully defended the Town against civil rights claims arising out of the grant of a variance with conditions.

PETER L. MELLO
Petrini & Associates, P.C. 372 Union Avenue Framingham, MA 01702 (508) 665-4310 pmello@petrjnjlaw.com

PROFESSIONAL EXPERIENCE
Petrini & Associates, P.C., Framingham, MA Associate, July, 2006 Present Represent municipal and educational clients in litigation in the areas of municipal law land use, wetlands, employment, labor, construction and others in various state and federal trial and appellate courts, as well as before administrative agencies such as the Civil Service Commission, the Bid Protest Unit of the Massachusetts Attorney General, and the Department of Labor Relations. Extensive handling of oral arguments, discovery practice, taking and defending depositions, drafting legal memoranda in connection with dispositive and other motions, direct and cross-examination at trial and representing clients at mediations, among several other litigation tasks. Advise and represent clients with respect to contract negotiations.

Kopelman and Paige, P.C., Boston, MA Associate, January, 2005 June, 2006 Represented municipalities in litigation involving various areas of municipal law. Prepared legal opinions on a range of legal issues.
-

Murtha Cullina, LLP, Boston, MA Summer Associate, May, 2002 August, 2002 Associate, September, 2003 December, 2004 Practice focused in commercial real estate transactional matters. Drafted memoranda, legal opinions and other documents in connection with the local permitting and financing of commercial real estate development projects.
-

EDUCATION Boston University School of Law, Boston, MA Juris Doctor, 2003 Staff Editor, American Journal of Law and Medicine Brandeis University, Waltham, MA B.A. in Politics, 2000 Certificate in Legal Studies

ADMISSIONS Commonwealth of Massachusetts United States Court of Appeals for the First Circuit United States District Court for the District of Massachusetts REPRESENTATIVE RECENT SUCCESSFUL OUTCOMES Carney v. Town ofFramingham, 79 Mass.App.Ct. 1129, 2011 WL 2672525 (2011) (unpublished disposition), cert. denied 460 Mass. 1111(2011). Town ofFramingham v. Framingham Police Officers Union, 80 Mass. App. Ct. 1107, 2011 WL 4467612 (2011) (unpublished disposition). CSE Framingham, LLC v. Town ofFramingham Conservation Commission, Middlesex Superior Court Civil Action No. 2010-01495 (Judgment issued on December 6, 2011) Levasseur, et a?. v. Town ofFramingham Conservation Commission, Middlesex Superior Court, Civil Action No. MICV2009-0904 (Judgment issued on March 3, 2011) Interstate Electrical Services Corporation v. Town ofRockland, Attorney Generals Office Bid Protest Decision (February 11, 2011). Lighthouse Masonry, Inc. v. Town ofRockland, Attorney Generals Office Bid Protest Decision (March 23, 2011). Interstate Electrical Services Corporation v. Town of Tewksbury, Attorney Generals Office Bid Protest Decision (November 17, 2010). PUBLICATIONS AND SPEAKING ENGAGEMENTS Panelist, Public Construction Law Update, co-sponsored by the Massachusetts Bar Association Civil Litigation Construction Law Practice Group and the City Solicitors and Town Counsel Association (September 12, 2012). Featured Guest Speaker at the Massachusetts School Building Authority Owners Project Manager Roundtable (September 10, 2012). Panelist, Public Construction Projects Avoiding Traps for the Unwary, sponsored by the City Solicitors and Town Counsel Association (April 26, 2012).

Featured Guest Speaker at the Open Luncheon Meeting of the Environmental Committee of REBA, the Real Estate Bar Association for Massachusetts (January 25, 2012), to discuss the case Carney v. Town ofFramingham, 79 Mass.App.Ct. 1129, 2011 WL 2672525 (2011), cert. denied 460 Mass. 1111(2011).

Panelist, The Municipal Lawyer and Public ConstructionCommon Issues Faced by Municzpal Counsel, co-sponsored by the Massachusetts Bar Association Civil Litigation Construction Law Practice Group and the City Solicitors and Town Counsel Association (April 28, 2011). Panelist, The FLSA and the 29 Us. C. sec. 207(k) Public safety Employee Exemption the recent Framingham Federal District Court Work Period Case and the City ofBoston SJC Impact Bargaining Cases and How They Affect Your Community, sponsored by the City Solicitors and Town Counsel Association (May 28, 2009). Member of the Newsletter Committee and Regular Contributor, City Solicitors and Town Counsel Association Quarterly Newsletter Co-authored an amicus brief on behalf of the City Solicitors and Town Counsel Association in Fordyce, et al. v. Town ofHanover, et al., 457 Mass. 248 (2010).

2012.09.10 PLM Rsum. doc (Updated 9.13.12)

HEATHER C. WHITE PETRINI & ASSOCIATES, P.C. 372 Union Avenue Framingham, MA 01702 (508) 665-4310 hwhite@petrinilaw.com LEGAL EXPERIENCE PETRINI & ASSOCIATES, P.C. Framingham, MA Associate Attorney 2009 to present Specializes in the practice of municipal law, including land use and zoning, conservation, real estate transactions, public records, procurement, and conflict of interest. Serves as lead counsel to the Framingham Department of Public Works. Counsels municipal clients on such matters as employee health insurance, water and sewer projects, open meeting law, and public construction law. BRACKETT & LUCAS Worcester, MA Associate Attorney 2004 to 2009 Engaged in the practice of general municipal law; served as lead counsel to Princeton and Berlin. Appeared before courts and administrative agencies in proceedings involving bylaw enforcement, land use appeals, and bid protests. CITY OF WALTHAM LAW DEPARTMENT Legal Intern BAR ADMISSIONS Supreme Judicial Court ofMassachusetts United States District Courtfor the District ofMassachusetts EDUCATION BOSTON COLLEGE LAW SCHOOL Juris Doctor AMERICAN UNIVERSITY Bachelor ofArts in Law in Society

2002 to 2003

December 2004 October 2005

Newton, MA May 2004 Washington, DC May 2001

PROFESSIONAL AFFILIATIONS AND EDUCATIONAL PROGRAMS MASSACHUSETTS BAR ASSOCIATION 2004 to present Public Law Section Council Member 2009 to present CITY SOLICITORS AND TOWN COUNSEL ASSOCIATION Executive Committee Member Panel Chair: Green Development MASSACHUSETTS CONTII~TUING LEGAL EDUCATION Panelist: Zoning Update 2005 to present 2008 to present 2008 Annual Meeting January 2009

Co-Author: Recent Decisions under the Comprehensive Permit Law, SECTION REVIEW (Mass. B. Assn, Boston, M.A.) Vol. 10 No. 1 2008.

CHRISTOPHER

L. BROWN

PETRINI & ASSOCIATES, P.C. 372 Union Avenue Framingham, MA 01702 (508) 665-4310 LEGAL EXPERIENCE Associate Petrini & Associates, P.C., Framingham, MA 2010 present
-

Perform pre-trial and trial litigation tasks before Massachusetts district and superior courts, hearings before the Civil Service Commission, and American Arbitration Association labor arbitrations, representing and advising public and private clients in a general practice focused on municipal law, construction law and employment law, including construction litigation, eminent domain defense, labor grievance and interest arbitrations, civil service bypass appeals, collective bargaining and general business disputes. Highlights of my experience include: Defending and obtaining favorable settlements of multiple eminent domain actions from a sewer extension project in the Town of Medway Obtaining full penal sum on a performance bond for a construction project in the Town of Framingham allowing project completion Advising health insurance coalition bargaining team in Town of Framingham Associate McDonough, Hacking & Lavoie, LLC, Boston, MA 2005 2010
-

Performed pre-trial and trial litigation tasks before Massachusetts district and superior courts, United States District Court for the District of Massachusetts, and New Hampshire superior court in litigation practice specializing in insurance defense, construction liability, motor vehicle liability, premises liability, products liability, environmental liability, toxic torts and insurance coverage. Highlights of my experience included: Obtained defense judgment for general contractor in a property damage case after 3 day bench trial Obtained summary judgment dismissal of a $20 million personal injury suit in favor of a property management firm Managed pre-trial discovery for defense on behalf of developers and general contractors of complex multi-party matters involving condominium construction defects allegedly valued at over $17 million, including significant document production and deposition discovery ADDITIONAL EXPERIENCE Captain, Field Artillery United States Army, Gie~3en, Germany 1998 2002
-

Supervised guard force of 200 personnel responsible for the safety and security of over 5,000 soldiers and civilians working in support of the United Nations Mission in Kosovo. Served as battalion fire direction officer, Paladin battery platoon leader, fire support officer, and headquarters battery supply officer, responsible for various aspects of training and readiness of a M109A6 Paladin battalion forward deployed in Germany. EDUCATION Juris Doctor Northeastern University School of Law, Boston, MA May 2005 Co-op Internships: Judicial Intern, Hon. Nonnie Burnes, Massachusetts Superior Court (Summer 2003) Law Clerk for 3 Boston civil litigation firms, Lurie & Krupp, LLP (Winter 2003-04), Donovan Hatem LLP (Summer 2004), Adkins, Kelston & Zavez, P.C. (Winter 2004-05) Teaching Assistant (competitively selected): Constitutional Law (Spring 2004), and Legal Practice (Fall 2003) Student Director of Administration & Volunteer Advocate: Shelter Legal Services Clinic at New England Shelter for Homeless Veterans Research Assistant for Professor Stephen Subrin (Fall 2004Spring 2005) Illinois Institute of Technology, Chicago, IL

Bachelor ofArts

May 1998 History and Political Science)

GPA: 3.70/4.00; Deans List, with High Honors (double major

Cadet, Army ROTC


BAR ADMISSION

Commonwealth of Massachusetts, 2005. United States District Court for the District of Massachusetts, 2006. State of New Hampshire (pro hac vice).
PROFESSIONAL ACTIVITIES

Massachusetts City Solicitors and Town Counsel Association Massachusetts Bar Association
PUBLICATIONS

Author, Insurance Policies and Endorsements to Consider for Public Construction Projects, Municipal Law Newsletter, Massachusetts City Solicitors and Town Counsel Association, Vol. 1, No. 3 (Spring 2012)
FACULTY APPOINTMENTS AND SERVICE

Panelist/Speaker, Public Construction Projects Avoiding Trapsfor the Unwary, Massachusetts City Solicitors and Town Counsel Association (April 2012)

HONORS AND AWARDS

New England Super Lawyers

Rising Star (2009, 2010 and 2011)

References and Law School Course/Co-op Evaluations Available Upon Request

Exhibit 2

MUNICIPAL AND SCHOOL CLIENTS A. Current Municipal and School Clients for which Christopher J. Petrini Serves as Town Counsel or Special Counsel Town of Framingham Town Counsel 2001- Present Robert J. Halpin Town Manager Memorial Building 150 Concord Street Room 121 Framingham, MA 01702 508-532-5400 rhalpin(~,framingharnma.gov Peter Sellers Executive Director Department of Public Works 508-532-5600 pas~framinghamma.gov John W. Grande Planning Board Director 508-532-5450 jwg@framinghamma.gov Nashoba Regional School District General Counsel 2006-Present Michael Wood Superintendent of Schools Nashoba Regional School District 50 Mechanic Street Bolton, MA 01740 978-779-0539 mwood@nrsd.net Mark Cerel, Esq. Town Attorney (508) 520-4964 mcerel@franklin.ma.us Ellen Sturgis 380 Great Road Stow, MA 01775 esturgis~gmail .com Amy Hastings 380 Great Road Stow, MA 01775 amy-hastings(2I~corncast.net

Town of Franklin Special Counsel

2012-Present

Stow Elementary School Building Committee

2010-Present

Town of Weymouth Special Counsel

2005-Present

George F. Lane, Jr., Esq. Town Solicitor Union Towers 87 Broad Street Weymouth, MA 02189 781-337-3613 John Stone Sewer Superintendent (781) 982-2122 jstone@abingtonsewer.com

Town of Abington

2011-Present

B.

Current Municipal Clients for Which Barbara J. Saint Andr Serves as Town Counsel Town of Sherborn Town Counsel 2010-Present Mr. James Purcell Interim Town Administrator 19 Washington Street Sherborn, MA 508-651-7850 Dianne.moores~isherbornma.org Ms. Johanna Barry Executive Secretary P.O. Box 372 West Brookfield, MA 508-867-1421 ibarry@wbrookfield.com Ms. Suzanne K. Kennedy Town Administrator 155 Village Street Medway, MA 508-533-3264 skennedy(~townofmedway.org

Town of West Brookfield Town Counsel

2009-Present

Town of Medway Town Counsel

2007-Present

C.

Former Special Counsel Clients of Barbara J. Saint Andr while at Petrini & Associates, P.C. Town of Scituate Special Counsel 2006-2011 Laura Harbottle Town Planner 600 Chief Justice Cushing Highway Scituate, MA 02066

-2-

781-545-8730 lharbottle@town.scjtuate.ma.us Town of Harwich Special Counsel 2006-20 10 James Merriam Town Administrator 732 Main Street Harwich, MA 02645 508-430-7513 imerriam@town.harwjch.ma.us John W. Coderre Town Administrator 63 Main Street Northborough, MA 01532 508-393-5040 townadmin(~town.northborough.ma.us Kathryn Joubert, Town Planner (508) 393- 5019 kj oubert~town.northborough.ma.us Town of Braintree Special Counsel 2006-Present Carolyn M. Murray, Esq. Town Solicitor One J.F.K. Memorial Drive Braintree, MA 02184 781-794-8110 cmurrary@braintreema.gov Paul LeBeau Town Administrator Town of Holliston 703 Washington Street Holliston, MA 01746 508-429-0601 Sherry Patch Administrative Assistant Myron E. Richardson Building P.O. Box 575 Gilbertville, MA 01031 413-477-6197 admin@townothardwick.com

Town of Northborough Special Counsel

2006-2008

Town of Holliston Special Counsel

2008-2009

Town of Hardwick Special Counsel

2006-2008

-3-

D.

Former Special Counsel Clients of Mr. Petrini Town of Tewksbury Special Counsel 2008-Present Charles J. Zaroulis, Town Counsel Law Offices of Charles J. Zaroulis 40 Church Street Lowell, MA 01852 978-458-4583 charles.zaroulis@verjzon.net James T. Donahue, Esq. 1252 Elm Street Suite 6 P.O. Box 465 West Springfield, MA 01090-0465 Tel. (413) 733-2100
-

City of West Springfield

2011-2012

Town of Falmouth Special Counsel

2006-2009

Frank K. Duffy, Jr., Esq. Town Counsel Town of Falmouth 157 Locust Street Falmouth, MA 02540 508-548-8800 fduffy@falmouthmass.us Thomas Cummings DPW Director Town of Holbrook Town Hall 50 North Franklin Street Holbrook, MA 02343 781-767-1800 pwd@holbrookmassachusetts.us James Smith Town Administrator Sutton Town Hall 4 Uxbridge Road Sutton, MA 01590 508-865-8720 j .smith@town. sutton.ma.us William J. Phelan Interim Town Administrator 50 North Franklin Street Holbrook, MA 02343 781-767-3143

Tn-Town Board of Water Commissioners (serving Braintree, Randolph & Holbrook) 2005-2008

Town of Sutton Special Counsel

2006-2008

Town of Holbrook Special Counsel

2005-06

-4-

Mansfield Municipal Electric Department

200 1-2003

John DAgostino Town Manager 6 Park Row Mansfield, MA 02048 508-261-7370 John DAgostino Town Manager 6 Park Row Mansfield, MA 02048 508-261-7370

Town of Mansfield Special Counsel

1999 2002

E.

Former Municipal Clients of Ms. Saint Andr

Ms. Saint Andr represented dozens of Towns as principal attorney while at Kopelman and Paige. She was principal attorney for Scituate for over 15 years, principal attorney for Harwich for approximately eight years, principal attorney for Northborough for over six years, and principal attorney for Braintree for six years. She continued to work with these towns as special counsel at Petrini & Associates, and the contact information for those towns is set forth above. While at Kopelman and Paige, she was also most recently principal attorney for the following towns:

Town of Manchester-by-the-Sea

1990-2006

Wayne Melville Town Administrator 10 Central Street Manchester-by-the-Sea, MA 978-526-2000 melvillew@manchester.ma.us Joseph Fernandes Town Administrator 142 South Street Plainville, MA 02762 508-695-3142 j fernandes@plainville.rna.us

Town of Plainville

2005-2006

Ms. Saint Andr also performed substantial work for numerous other towns while at Kopelman and Paige.

Last Updated: 6/2 7/1 2


2012.01.17 List ofmunicipal references (2700-06).doc

-5-

Exhibit 3

Christopheri. Petrini is founding principal of Petrini & Associates P.C. Mr. Petrini has over 20 years experience representing municipalities, general contractors, subcontractors, and design ~ ers at every stage of the construction process. Mr. Petrini has served as Framingham Town Counsel since 2001 and has served as special counsel to nearly two dozen municipalities and public owners throughout the Commonwealth in the areas of public construction coun seling and litigation. Mr. Petrini serves as co-chair of the Massachusetts Bar Associations Construction Law Commit tee of the Civil Litigation Section and is a Past President of the City Solicitors and Town Counsel Association. Mr. Petrini has chaired or served as a panelist on more than 20 continuing legal education seminars on public construction and has published over a dozen articles on the same topic. Mr. Petrini was recognized as a New England Super Lawyer in the category of municipal law in 2009 and 2010. Mr. Petrini earned hisA.B. in Philosophy and Government from Georgetown University (cum laude) and isa high honors graduate of Duke University School of Law.
-~

PETRINI

ASSOCIATES, P.C.

Counselors at Public Law

Pu b Iic Construction Practice Group


Thinking Prospectively. Defending Effectively.

Peter L Meilo is an associate at Petrini & Associ ates, P.C. Mr. Mello has developed a significant construction law practice and has advised clients regarding construction contracts, claims, insur V ance protections and myriad other legal issues arising in public construction projects, including those using the Construction Manager at Risk delivery method. In addition he has successfully represented public owners in various proceedings in court and before the Bid Protest Unit of the Massachusetts Office of the Attorney General. Mr. Mello is a graduate of Brandeis University and Boston University School of Law. Christopher L Brown is an associate at Petrini & Associate, P.C. Mr. Brown has defended develop ers and contractors in construction defects litiga tion involving both private and public construction projects, and also has assisted private and public clients in the enforcement of defense, indemnity and bond obligations and responding to various contractual issues, such as changed condition and extra work claims and subcontractor demands for direct payment Mr. Brown has been recognized as a Rising Star by New England Super Lawyers in 2009 and 2010 in the civil litigation category. Mr. Brown is a graduate of the Illinois Institute of Technology (high honors) and Northeastern University School of Law, and is a veteran of the United States Army.

Public Construction is a Complex

Pu bi IC Owners Need ~ A U flu VI C~ at very Phase


~

P A

PETRINI ASSOCIATES. Counselors at Public Law

P.C.

372 UnionAvenue Framingham, MA 01702

Phone: 508-665-4310/Fax: 508-665-4313 E-mail: cpetrini@petrinilaw.com


www.petrinilaw.com

P&A attorneys have provided sound legal and practical advice at every phase of the construction process
P&A attorneys have provided sound legal and practical advice at every stage of the public construction process, including: Designer selection Procurement process Prequalification of bidders Preparing bid documents Evaluating defects in bid submissions Post-award contract negotiations

Recent Successes
Enterorise EauiDment Co.. Inc. v. Town of Braintree, Norfolk Superior Court, C.A. No. 09-1784: P&A successfully defended the Town of Braintree from a prospective bidders request for a preliminary injunction seeking to enjoin the Town from pro ceeding with the use of a project labor agreement in connec tion with the completion of approximately $3.5 million worth of renovations at South Middle School. This outcome was significant given the existence of a high legal standard, ar ticulated in John T. Callahan & Sons. Inc. v. City of MaIden, 430 Mass. 124 (1999), which often is construed to bar the use of such project labor agreements. Interstate Electrical Services Corooration v. Town of Rock ~ AGO Bid Protest Decision (February 11, 2011), request for reconsideration by Interstate denied by Attorney General on March 9, 2011: P&A successfully represented the Town of Rockland in defeating a bid protest by an electrical trade contract bidder in an approximately $85 million CM at Risk project. Li~tithouse Masonry. Inc. v. Town of Rockland. AGO Bid Pro test Decision (March 23, 2011): P&A successfully repre sented the Town of Rockland in defeating a bid protest by a masonry trade contract bidder in an approximately $85 mil lion CM at Risk project. Interstate Electrical Services Corooration v. Town of Tewks bury, AGO Bid Protest Decision (November 17, 2010): P&A successfully represented the Town of Tewksbury in defeat ing a bid protest by an electrical sub-contract bidder. S.B. General Contractors v. Town of Medway: P&A negotiated a favorable settlement on behalf of the Town of Medway resolving a claim brought by SB General Contacting in con nection with the Medway Industrial Park Sewer Expansion project. Framingham High School BuiIdin~ Committee: P&A Attorneys provided ongoing advice to the Building Committee in the multi-million dollar renovation and expansion of Framingham High School. P&A attorneys successfully represented the Building Committee and the Town in a lawsuit filed by the General Contractor and negotiated a protective project take over and assumption agreement with the surety after the General Contractor filed for bankruptcy. The project was completed by a follow-on contractor hired by the surety at no additional cost or time impacts to the Town. Town of Stow Elementary School Building Committee: P&A negotiated an owner-contractor agreement on behalf of the Town of Stow in connection with the con struction of an elementary school, and has provided ongoing counsel as needed throughout the project, including responding to claims for equitable adjust ment of the contract price. Town of Sherborn: P&A negotiated an owner-architect agreement on behalf of the Town of Sherborn in con nection with a project involving improvements to the towns library. Fordvce. et p1. v. Town of Hanover. et al., 457 Mass. 248 (2010): P&A attorneys Christopher Petrini and Peter Mello co-authored an amicus brief on behalf of the City Solicitors and Town Counsel Association in this leading case in which the Supreme Judicial Court af firmed the Town of Hanovers award of a contract un der G.L. c. 149, ~ 44A-44J, the public bidding statute governing design bid-build construction.

Achieving compliance with insurance and bonding requirements Defending against bid protests

Addressing change orders Resolving contractor performance issues

Correcting defective work Evaluating alleged changed condi tions Dealing with delays Responding to contractual claims Prosecuting contractual claims Enforcing contractual warranties Responding to demands for direct payment from subcontractors Mediation

PETRINI

ASSOCIATES,

P.C.

I X Counselors at Public Law

Arbitration Litigation

372 Union Avenue Framingham, MA 01702 Phone: 5O8-665-431O/Fax: 508-665-4313 E-mail: cpetrini@petrinilaw.com www.petrinilaw.com

Exhibit 4

10/9/2012

PUBLIC CONSTRUC LAW UPDATE


Massachusetts Bar Association September 12, 2012

Christopher J. Petrini, Esq. F & Associates, P.C.

-_~D A
I

TX

PETRINI

ASSOCIATES,

P.C.

Counselors at Public Law

Program Faculty
Christopher J. Petrini, Esq. Peter L. Mello, Esq. Christopher L. Brown, Esq.

10/9/2012

Program Faculty
Petrini & Associates, P.C.

PM represents numerous public owners, entities, insurers and insured parties in public construction matters, including the following: Contractual disputes arising from the bidding process Claims alleging changed circumstances or scope of work Claims in quantum meruit to recover contract balances Claims seeking liquidated damages for delay Claims for breach of contract arising from default by contractors Defending insured parties such as architects, engineers, and other design professionals and contractors in cases advancing professional liability claims PM has served as counsel to public owners on projects relating to horizontal construction (public works) and vertical construction (public buildings). Our cases have ranged from legal issues related to the bankruptcy of a general c ron a 60 million dollar high school renovation, resolution of multi-million r~ damages claims arising from a large sewer treatment plant, de~ construction of a senior center, and legal claims arising from a ~ ..~. .~ project essential to the delivery of a municipal water supply serving three comi Our clients include large cities, towns and public agencies in this specialized ~ practice.

Program Topics
ChristopherJ. Petrini, Esq. Payment Issues Changed Conditions Subcontractor Claims & Payment Bonds Arbitration Remedies Post-award Interest

10/9/2012

Program Topics
Peter L. Mello, Esq. Bidding Issues Awarding Authority Investigations of Bidders Responsible Employer Ordinances

Program Topics
ChristopherL. Brown, Esq. Insurance/Indemnity Issues Contract Insurance Requirements Certificates of Insurance

10/9/2012

Public Constri~ Law Update

Payment Issues

Payment Issues

M. DeMatteo Construction Co., Inc. v. MBTA, 2012 WL 1726684 (Mass. Super.)


Silver Line construction Unit Price Contract Contractor alleged changed conditions in part based upon encountering more contaminated soils that expected Claim for statutory interest based e~ failure to timely pay r~
~

10/9/2012

Changed Conditions
G.L. c. 30 39N contemplates two types of changed conditions:

Type I Changed Conditions: Conditions that differ

substantially or materially from those shown on the plans or indicated in the contract documents; and

substantially or materially from those. ordinarily encountered and generally recognized as inherent in work of the character provided for in the plans and contract documents.
. .

Type II Changed Condition: Conditions that differ

Changed Conditions

Claims under Section 39N have to be in writing as soon as possible after such conditions are discovered Court ruled against Contractor because it presented no evidence that written notice of the alleged changed condition was provided to MBTA

10/9/2012

Changed Conditions
In their construction contracts parties may set forth more explicit procedural requirement, such as the following illustrative example: Notice: Written notice stating the general nature of each Claim, shall be delivered by the claimant to Engineer and the other party to the Contract promptly (but in no event later than 30 days) after the start of the event giving rise thereto. The responsibility to substantiate a Claim shall rest with the party making the Claim. Notice of the amount or extent of the Claim, with supporting data shall be delivered to the Engineer and the other party to the Contract within 60 days after the start of such event (unless Engineer allows additional time for claimant to submit additional or more accurate data in support of such Claim). A Claim for an adjustment in Contract Price shall be prepared in accordance with the provisions of Paragraph 12.01. B. A Claim for an adjustment in Contract Time shall be prepared in accordance with the provisions of 12.02.B. Each Claim shall be accompanied by claimants written statement that the adjustment claimed is the entire adjustment to which the claimant believes it is entitled as a result of said event. The opposing party shall submit any response to t-- ~ ~--~r and the claimant within 30 days after receipt of the claimants last Engineer allows additional time). Article 10.05, Standard General Conditions of the C Engineers Joint Contract Documents Committee,J

Changed Conditions

Contractual claims provisions are strictly enforced. See. e.g., Skopek Bros., Inc. v. Webster Housing Authority, 11 Mass. App. Ct. 947, 947-48 (1981); Glynn v. Gloucester, 9 Mass. App. Ct. 454, 460 (1980), rev, denied, 396 Mass. 1107(1986); Sutton Corp. v. MDC, 38 Mass. App. Ct. 764, 767 (1995); D. Federico Co. v. Commonwealth, 11 Mass. App. Ct. 248,252-52 (1981)(A contractorwho fails to adhere to the strict claims provision of a public works contract forfeits all rights of recovery of damages or extra compensation unless the agency waives compliance therewith or the contractor is excused from compliance.). To establish waiver, the contractor must show that there was clear, decisive, and unequivocal conduct on the part of an authorized representative of the agency indicating that it would not insir4 adherence to the agreement. Glynn, 9 r\ 462.
~

10/9/2012

Responding to Changed Conditions Claims

check all relevant dates, including date of occurrence of event giving rise to claim, dates on which contractor provided notice of claim, etc.; Review contractual claims procedures and confirm timeliness of claims; Confirm that public owner has not waived strict compliance with claims procedures; Ascertain nature of the alleged changed condition (i.e., Type I, Type II or, instead, a mere quantity overrun); Confirm that changed condition has impacted project cost or time; Confirm whether contractor knew or should have known of alleged changed condition through pre-bid inspection or testing; and Evaluate risks, benefits and cost-effectiveness of opr~ litigating claims.

Periodic Estimates
M. DeMatteo Construction Co., Inc. v. MBTA, 2012 WL 1726684 (Mass. Super.)

Contractor sought interest based on MBTAs failure to pay within 30 days after contractor submitted pen requisition application for payment Court ruled that a periodic estimate, for purposes of G.L. c. 30 39G and 39K is a request for payment that has been approved in writing by b the owner and the contractor

10/9/2012

Payment Issues

M. DeMatteo Construction Co., Inc. v. MBTA, 2012 WL 1726684 (Mass. Super.)

Interest payable under the statutes was only due for payments made more than 30 days after the periodic estimate, not the contractors submission. Contractor has filed a notice of appeal

Subcontractor/Supplier Payment Issu:


City Rentals, LLC v. BBC Co.. Inc., 79 Mass. App. Ct. 559 (2011) Claim by supplier of rental equipment to site clearance subcontractor on public construction project against general contractor and surety under statutory labor and material payment bond to collect unsatisfied rental charges for equipment retained by general contractor after subcontractor was terminated. Appeals Court affirmed trial court judgment in favor of supplier, adjusting award of legal fees to exclude fees related other claims.

10/9/2012

Subcontractor/Supplier Payment Issues~


City Rentals, LLC v. BBC Co., Inc., 79 Mass. App. Ct. 559 (2011)
Subcontractors and materialmen do not have the benefit of mechanics or materialmens liens in public construction projects. G.L. c. 149 29 (or G.L. c. 30 39F for filed sub-bidders) affords them the security they need without this benefit. The statute is construed broadly to effectuate this purpose. Court rejected the general contractors argument that multiple claim notices were required where the supplier furnished multiple pieces of equipment under four separate rental agreements.

Subcontractor/Supplier Payment lssL~.


G.L. c. 149 Public Building Construction Contracts
Less than $25,000

neither performance nor payment bonds are required by statute $25,000 to $100,00050% payment bond required by statute (G.L. c. 149 29), no performance bond req u i red Projects over $100,000 100% payment bonds and performance bonds required

10/9/2012

Subcontractor/Supplier Payment lssues~


G.L. c. 30 ~ 39M Public Works Contracts Under $25,000, no payment or performance bonds are required Over $25,000, 50% payment bond required, no performance bond required

Subcontractor/Supplier Payment Issues


None of these statutes preclude a city or town from requiring 100% payment and performance bonds on projects where they are not statutorily required. Craft contract provisions for bonds that protect the owner:

Minimal notice requirements Applicable during project and warranty period Be wary of bond forms (do they protect your client or -.4 the surety?)

10

10/9/2012

Sample Performance Bond Language


KNOW ALL MEN BY THESE PRESENT, that we ______________________with a place of business at _________________________________ as principal (the Principal), and __________________________ a corporation qualified to do business in the Commonwealth of Massachusetts, with a place of business at _______________________ as Surety (the Surety), are held and firmly bound unto the _______________as Obligee (the Obligee), in the sum of _______________________________________________________ lawful money of the United States of America, to be paid to the Obligee, for which payment, well and truly to be made, we bind ourselees, our respectise heirs, executors, administrators, successors and assigns,jointly and seserally, firmly by these present. WHEREAS, the Principal has assumed and made a contract with the Obligee, bearing the date of __________________________,for the _____________________________ [tnsert Project Name] NOW THE CONDITIONS of this obligation are such that if the Principal and all Subcontractors undersaid contract shall well and truly keep and perform all the undertakings, cosenants, agreement, terms, and conditions of said contract on its part to be kept and performed during the original term of said contract and any extensions thereof that may be granted by the Obligee, with or without notice to the Surety, and during the life and any guarantee required under the contract, and shall also well and truly keep and perform all the undertakings,couenants, agreements, terms and conditions of any and all duly authorized modifications, alterations, changes or additions being hereby wai~ed, then this obligation shall become null and void; otherwise, it shall remain in full force and airtue. IN THE EVENT the Contract is abandoned by ti ~-- or is tern~ ~-v under the applicable prosisions of the Cm - if requested in writing by ___________________ complete said Contract in accordance with its h

Sample Payment Bond Language

KNOW ALL MEN BY THESE PRESENT, that we ______________________with a place of business at __________________________________________ as principal (the Principal), and __________________________,a corporation qualified to do business in the Commonwealth of Massachusetts, with a place of business at ___________________________ as Surety (the Surety), are held and firmly bound unto ____________as Obligea (the Obligee(, in the sum ot lawful rnurmyur Inn u~uinu States of America, to be paid to the Obligee, for which payment, well and truly to be made, we bind ourse[~es, our respectise heirs, executors, administrators, successors and assigns, jointly and se~erally, firmly by these present. WHEREAS, the Principal has assumed and made a contract with the Obligee, bearing the date of ______________________ for the ________________ [Insert Name of Project]. NOW, THE CONDITIONS of this obligation are such that if the Principal and all subcontractors under said contractshall pay for all labor performed or furnished and for all materials used or employed in said contract and in any and all duly authorized modifications, alterations, extensions of time, changes or additions to said contract that may hereafter be made, notice to the Surety of such modifications, alterations, extensions of time, changes or additions being hereby waised, the foregoing to include any other purposes or items set out in, and to be subject to, the prosisiona of Massachusetts General,~ Laws, Chapter 30, Section 39A, and Chapter 149, Section 29, as amended then this obligation s[ become null and ~oid; otherwise, it shall remain in full force and eirtue. ~

11

10/9/2012

Construction Dispute Resolution


Massachusetts Highway Department v. Perini Corporation, 79 Mass. App. Ct. 430 (2011).

MHD challenged a Dispute Resolution Boards (DRB) award of post-award interest to Contractor Since Contractor was paid through interim funding on items in dispute and Contractor had use of the monies pending the outcome of the dispute, MHD argued that the post-award interest served only to penalize MHD, and given its status as a public entity, the taxpayers The Court disagreed with CA/Ts argument, finding the public policy favoring arbitration and timely corn plianc with arbitration awards more significant than raised by CA/T.

Construction Dispute Resolution

Massachusetts Highway Department v. Perini Corporation, 79 Mass. App. Ct. 430 (2011).

portion of the award was barred on sovereign immunity grounds. The Court also rejected this argument, noting that the rights and obligations of CAIT relative to the award were based on contract, and that the Commonwealth long ago waived its sovereign immunity against actions brought to enforce obligations it assumed through contracts. The arbitration statute, G.L. c. 251 I et seq, makes no distinction between private

MHD also argued that postaward interest was inappropriate where it did not consent to pay postaward interest as a part of an arbitration award, and therefore the interest

and public entities, and in agreeing to arbitrate any and all disputes in their agreement, the parties essentially consented to any and all remedies, specific consent to a particular remedy is not necessary.

[A]rbitrators, unless expressly restricted by the agreement or the submission to arbitration, have substantial discretion to de pe of their contra tiisl to fashion remedies. ~ - ,. -. - , a. ~... ~ ~ consent not necessary to

12

10/9/2012

Construction Dispute Resolution


Takeaways from the Perini case:

Methods of dispute resolution provided by a contract are just as significant as other provisions in the agreement in the crafting and negotiation of final agreements for public construction projects. Address dispute resolution in a way that not only ensures that disputes can be resolved as efficiently as possible to keep the project moving forward, but also resolved with dispute resolution systems that are empowered or limited as necessary to protect the taxpayer interests involv--~ such as, by way of example, providing that a ~ not award post-award interest on any result in the Perini case
-~

Public Constructi Law Update


w

Bidding Issues

13

10/9/2012

Awarding Authority Investigations of Bidders


Barr, Inc. v. Town of Holliston, 462 Mass. 112 (2012)
Salient Facts:

~ ~

The Town of Holliston solicited bids for the construction of a new police station. Project cost was estimated at approximately $5 Million. Barr Incorporated (Barr) submitted the lowest bid. The Town determined that Barr was not a responsible and eligible bidder. The Town based its determination in part upon information that Town officials gathered through internet research and communications with eight municipalities that had previously retained Barr as a contractor. Six of the eight municipalities contacted had an overall negative impression of Barrs work. On the basis of the Towns independent investigation, the Town Administrator concluded that of the eighteen public p~--~-~ Barr on which the town had information, seven had r~ experiences for the project client. Barr, ~ 462

Awarding Authority Investigations of Bidders


Barr, Inc. v. Town of HoHiston, 462 Mass. 112 (2012) Procedural Background:

Barr filed an action in Superior Court seeking injunctive and declaratory relief, and moved for summary judgment. The Superior Court denied Barrs motion for summary judgment and allowed the parties joint motion to report the case to the Appeals Court. The SJC transferred this case on its c the Appeals Court.

14

10/9/2012

Awarding Authority Investigations of Bidders


Barr, Inc. v. Town of Holliston, 462 Mass. 112 (2012)

Barr argued that G.L. c. 149, 44D limits an awarding authoritys scope of review exclusively to information contained in a contractors DCAM file, and therefore the Towns determination was improper.

Awarding Authority Investigations of Bidders


Barr, Inc. v. Town of Holliston, 462 Mass. 112 (2012)
G.L. c. 149,

44D(1)(a)

provides:

Every bid or offer submitted for a contract subject to section forty-four A shall be accompanied by a copy of a certificate of eligibility issued by the commissioner showing that the bidder or offeror has the classification and capacity rating to perform the w-~- ~- ~d. The bid or offer shall also be accompanied by an update statement ir he commissioner shall prescribe. A blank copy of such form shall be ft ...-. ~ requesting a ~cts 0 y, all projects ~antage of work on such projects not completed, the names ns oFthe personnel who will have supervisory responsibility for t ~ contract, any significant changes in the bidders or offeror organization since the date of certification ol information as the commissioner shall presc r or offeror sha in its bid or offer and update statement the Ii I construction p submitted to the division in its most recent a for con~ bid or offer submitted without the appropriate ~ e and u invalid.

15

10/9/2012

Awarding Authority Investigations of Bidders


Barr, Inc. v. Town of Holliston, 462 Mass. 112 (2012)
Policy Purposes Underpinning These Requirements:

First,they assure a minimum level of contractor competence, one safeguarded by DCAM through its certification process. Barr, ~ 462 Mass. at 116 (citation omitted). Second, they establish DCAM as a clearinghouse of information between and among individual awarding authorities. Id. (citations omitted). Third, they provide awarding authorities with guidelines issued by an expert authoritythatis, DCAMon how to determine whether a bidder can successfully complete a construction contract in a timely manner. Id. (citation omitted).

Awarding Authority Investigations of Bidders


Barr, Inc. v. Town of Holliston, 462 Mass. 112 (2012)
G.L. C. 149,

44D(6) provides:

In determining who is the lowest responsible and eligible bidder as required in paragraph (2) of section forty-four A, the awarding authority shall consider the information submitted by the bidder in the update statement. If the awarding authority determines that the low bidder is not responsible and eligible, the awarding authority shall reject the bidder and evaluate the next low bidder in accordance with this section; the awarding authority shall give notice of such action to the division of capital asset management and maintenance. In determining which is the most advantageous offer, the awarding authority shall consider the information submitted by the offerors on the update statement.

810 CMR 8.04(2) provides:

An Awarding Authority, in determining the lowest consider the information submitted in the Update: Contractors certification file from DCAM.

16

10/9/2012

Awarding Authority Investigations of Bidders


Barr, Inc. v. Town of Holliston, 462 Mass. 112 (2012)
The SJC ruled that when an awarding authority is making a determination as to bidder responsibility, it is not constrained to look only at materials compiled as part of the [DCAMs] contractor certification process, but instead may consider information bearing on a bidders responsibility or lack thereof outside that contained in DCAMs records on the bidder. Barr, Inc., ~ 462 Mass. at 112-113, 114-115.

In reaching these findings, the Court noted that the entity responsible for making a final determination of bidder responsibility remains the awarding authority, not DCAM consistent with express terms G.L. c. 149, 44 legislative history. Id. at 116-117.

Awarding Authority Investigations of Bidders


Barr, Inc. v. Town of Holliston, 462 Mass. 112 (2012)

The SJC concluded that although G.L. c. 149, 44D(6) requires that an awarding authority consider information in a bidders update statement, and 810 CMR 8.04(2) requires that an awarding authority review the contractors certification file from DCAM, nothing in either the statute or DCAMs regulations expressly precludes the awarding authority from conducting an independent investigation into the past performance of potential bidders. Id. at 117. Moreover, the statutory requirement that awarding authorities in fact read and consider information related to a bidders performance in at least some past projects does not support the inference Barr suggests, that the Legislature wished to prevent awarding authorities from considering the bidders performance in a wider sample of such projects, as the town did here. Id. Nor does permitting awarding authorities to conduct independent b. investigations compromise the principle that all general contractors~ placed] on an equal footing in the competition to gain tb~ omitted). Id.

17

10/9/2012

Awarding Authority Investigations of Bidders


I

Barr, Inc. v. Town of Holliston, 462 Mass. 112 (2012)


ce
The Court also added that the information garnered from an awarding authoritys

independent investigation of a bidder may at times be of equal or greater recency and relevance than the information in DCAMs certification file and the bidders update statement, dat 119. DCAMs certification file need include only a representative sample of a contractors public sector projects, and will not necessarily reflect performance in any of the contractors private sector work. 810 Code Mass. Regs. 4.06(2). Id. Accordingly, DCAMs certification file may exclude a significant portion of the work history of contractors with extensive experience, or with experience primarily in private sector construction projects. Awarding authorities should not be precluded from assembling a more complete picture of a contractors qualifications than that available from the certification file and u alone. Id.

Awarding Authority Investigations of Bidders


Barr, Inc. v. Town of Holliston, 462 Mass. 112 (2012)
The SJC offered some cautions:
e

The Court noted that [w]here an awarding authority rejects a bidder for lack of competence, that deciaion ahould be juatified on the record compiled by the authority Id. at 118. The Court atated that [w]here an awarding authority decidea to supplement the record before it aa to one bidder but not aa to another, that deciaion ahould alao be juatifiable on the record, aa ahould an awarding authoritya deciaion to deny a bidder any opportunity to reapond to the reaulta of an independent inveatigation. Id. The awarding authority may only contract with a bidder certified by **111 DCAM. See G.L. c. 14g, 44D. Id. at 117. Even in aelecting among certified biddera, G.L. c. 14g, 44D (6), requirea that awarding authoritiea ahall conaider the information aubmitted by the bidder in the update atatement. Id. DCAM regulations require further that awarding authorities ~ ~ certification file from DCAM. citing 810 Code Mass. Rega.

18

10/9/2012

Responsible Employer Ordinances


UCANE v. City of Fall River, 2011 WL4710875(D. Mass.) Plaintiffs:

Utility Contractors Association of New England, Inc. (UCANE) is a non-profit corporation that represents contractors, materialmen, suppliers and associate members who are principally engaged in public construction projects in New England. W. Walsh Company, Inc. (Walsh) is a construction contractor and member of UCANE. Rodney Elderkin is a citizen of RI with Walsh as a construction

Responsible Employer Ordinances


UCANE v. City of Fall River, 2011 WL4710875 (D. Mass.)

The plaintiffs challenged the constitutionality of a responsible employer ordinance (REO) enacted in the City of Fall River in 2010. The ordinance set forth certain requirements and prerequisites for prospective contractor bidders on construction projects funded by Fall River or federal grants or loans. UCANE, ~ 2011 WL4710875 at Salient provisions of the REQ included residency, apprenticeship, and health and welfare and pension plan provisions. The plaintiffs alleged that the REQ improperly disqualified Walsh from bidding on publicly-funded City construction projects and that as a result of the REQ Walsh did not bid on a certain City dam

@ @

19

10/9/2012

Responsible Employer Ordinances


UCANE v. City of Fall River, 2011 WL4710875(D. Mass.)
Relevant Terms of the REQ: 0

The residency provisions required that 100% of the apprentices and 50% of all other workers for any construction project be Fall River residents. The apprenticeship provisions required all contractors to maintain and participate in an active apprentice program that must have operated without suspension for at least three years prior to the bid date and which must have graduated at least two apprentices per year per trade for the same period. The REQ also required contractors to furnish a pension/annu all employees on the project, and bidders and sub at their expense, hospitalization and medical be employees employed on thep

Responsible Employer Ordinances


UCANE v. City of Fall River, 2011 WL4710875(D. Mass.)
Plaintiffs asserted that:

o
0

o o

The residency provisions violated the Privileges and Immunities clause of the United States Constitution and the due process and equal protection clauses of the Massachusetts Constitution; the apprenticeship, health and pension provisions were preempted by ERISA; the residency, apprenticeship, health and pension provisions violated the Home Rule Article of the Massachusetts Constitution which prohibits regulation of the private employer-employee relationship without statutory authority; the apprenticeship provisions of the REQ violated Massachusetts public bidding
laws; and the health care provisions of the REQ violated Massachusetts laws.

UCANE,~~52O11 WL4710875 at 1-2.

20

10/9/2012

Responsible Employer Ordinances


UCANE v. City of Fall River, 2011 WL4710875(D. Mass.)
Citys Principal Defense:

As a primary defense the City relied heavily upon the fact that its City Council had repealed its REO and reenacted a prior similar ordinance that, the City contended, rendered moot the plaintiffs challenge of the REQs residency and pension/annuity requirements. The Court cited U.S. Supreme Court case law discussing the well settled rule that a defendants voluntary cessation of a challenged practice does not deprive a federal court of its power to determine the legality of the practice. UCANE, su ra , 2011 WL 4710875 at 2, quoting Northeastern Florida Chapter of Associated Genera Contractors of America v. City of Jacksonville, 508 U.S. 656, 662 (1993); City of Mesquite v. Aladdins Castle, Inc., 455 U.S. 283, 289 (1982). Accordingly, the Court rejecteC ~ - ~ s mootness defense and found that Fall F vc ~~~ titutional cor-~ ~ --.s not depr practice, n her that th reason to beli therefore an in 2.

Responsible Employer Ordinances


UCANE v. City of Fall River, 2011 WL4710875 (D. Mass.)
It was undisputed that Walsh did not bid on the underlying dam project after the City repealed the REO, and that the REQ had not been enforced. As a result, the City contended that the plaintiffs lacked standing. The Court rejected the Citys argument on standing as irrelevant, finding that [un the bidding context, [linjury in fact is the inability to compete on an equal footing in the bidding process, not the loss of a contract, UCANE,

,2011 WL4710875 at 3, quoting City of Jacksonville, ~ 508 U.S. at 657, and that [a] party who must comply with a law or face sanctions has standing to challenge its application and therefore a party need not show that the law is being enforced or will be enforced. L ~ 2011 WL4710875 at 3, quoting ~ v. City of Urbana, Ill. 103 (1997).

21

10/9/2012

Responsible Employer Ordinances


UCANE v. City of Fall River, 2011 WL4710875 (D. Mass.)
Key Privileges and Immunities Clause Principles:

The Privileges and Immunities Clause of the United States Constitution states: The citizens of each state shall be entitled to all privileges and immunities of citizens in several states. UCANE, ~ 2011 WL4710875 at 4, quoting U.S. Conat. art. IV, 2, cli.). The Clause is designed to prevent the discriminatory treatment of citizens from other states [to avoid] economic Balkanization ... [by keeping] states from adopting highly protectionist economic policies. The Constitution protects nonresidents from economic discrimination so that the nation may function as a single economic union. UCANE, ~p~y 2011 WL4710875 at4, quoting A.L. Blades & Sons, Inc. v. Yerusalim, 121 F.3d~~S~B69870 (3rd Cir.1997) (internal citations omitted). The word states in the Clause is construed broadly and its pro~ ~ ~ to municipal residents. UCANE, ~p~,2011 WL4710875 at4, C H ConstructionTrades CEtiii6iTof Camden Countyv. Mayor and C U.S. 208 (1984) (tact that ordinance isa municipal, rather than outside the [] scope [of the Privile~ . political subdivision of the State, a State can no more readily be acco ~ ~

Responsible Employer Ordinances


UCANE v. City of Fall River, 2011 WL4710875 (D. Mass.)
Key Privileges and Immunities Clause Principles:

The Privileges and Immunities Clause only prohibits discriminatory acts that satisfy a two-step test: (1) first, the discriminatory act must be shown to impair one of the privileges protected under the Clause; (2) next, the burden shifts to the government, here Fall River, to establish that it had a substantial reason for the difference in treatment and that the discrimination bore a s relationship to its objectives.
-~~-- ..---

UCANE,~P~, 2011 WL4710875at4, Court of Virginiav. F

22

10/9/2012

Responsible Employer Ordinances


UCANE v. City of Fall River, 2011 WL4710875(D. Mass.)
Courts Privileges and Immunities Clause Analysis: o The Court found that the City apparently in reliance on mootness, does not advance any substantial justification for the discriminatory ordinance. UCANE,~p~ ,2011 WL4710875 at4. o As a result, the Court held that it only needed to address the first prong of the Privileges and Immunities Clause namely, whether the municipal residency re~ 2010 REQ burdened a recognizE

Responsible Employer Ordinances


UCANE v. City of Fall River, 2011 WL4710875 (D. Mass.)
Courts Privileges and Immunities Clause Analysis: Sections 2945 and 2(iv) of the 2010 REQ requires any prospective bidder on Fall River construction projects to staff its team so that 100% of the apprentices and 50% of all other workers are Fall River residents. This essentially requires that the majority of all workers on every Fall River job be residents. Such a scheme puts UCANE members that do not employ extensive quantities of Fall River residents at a competitive disadvantage they will have to expend time, effort and resources recruiting Fall River employees prior to bidding on a Fall River construction project. Therefore, any contractor who already enjoys a high margin of Fall River employees will have an unfair economic advantage since it will not have to enga~ further recruitment efforts.
UCANE,~~ 2011 WL4710875 at 5.

23

10/9/2012

Responsible Employer Ordinances


UCANE v. City of Fall River, 2011 WL4710875 (D. Mass.)
Courts Privileges and Immunities Clause Analysis: Such municipal residency requirements implicate the right of workers, such as Elderkin, to be productive and find suitable work. There is a fundamental right to employment, where the employee is hired by a private employer who receives a government contract to work on a public project. AL. Blades, 121 F.3d at 871; Connecticut ax re!. Blumenthal v. Crotty, 346 F.3d 84, 97 (2d Cir.2003) (pursuit of a livelihood, [is) a fundamental right within the purview of the Privileges and Immunities Clause); OReilly v. Board of Appeals for Montgomery County, Md., citing Camden, 942 F.2d 281, 284 (4th Cir.1 991) (the pursuit of a common calling is one of the most fundamental of those privileges protected by the Clause.). LlCANE,~g~~, 2011 WL4710875 at5. o Because the 2010 REQ residency rer~ ~ Priviieg~ sand Immuni -w the resid F.2i. ,.., ~ ~ county regulation requi geographical area to be served before they coi
~ ~ ~ .

Responsible Employer Ordinances


UCANE v. City of Fall River, 2011 WL4710875 (D. Mass.)

Because the 2010 REQ residency requirements impede a fundamental right under the Privileges and Immunities Clause and Fall River does not offer any justification, the Toomer test is satisfied, and as a matter of law the residency requirement is invalid, See OReilly, 942 F.2d at 284 (invalidating county regulation requiring taxi cab drivers to be familiar with the geographical area to be served before they could receive a passenger license),

UCANE,~P~, 2011 WL4710875at5.

24

10/9/2012

Public Constructi~ Law Update

Insurance/Indemnity~

Contract Insurance Requirements


Barletta Heavy Division, Inc. v. Layne Christensen Co., 2011 WL1399692(D. Mass.)

Barletta was the general contractor for MBTAs Charles/MGH Red Line Station Accessibility and Modernization Project. Layne was the drilling subcontractor to Barletta. Pursuant to the Subcontract, Layne named as an additional insured in its CGL policy, wh a $2,000,000 limit and a $500,000 dE

25

10/9/2012

Contract Insurance Requirements


Barletta Heavy Division, Inc. v. Layne Christensen Co., 2011 WL 1399692 (D. Mass.)

Layne provided a certificate to Barletta. The certificate did not mention the deductible, but indicated that [t]he insurance afforded by the policies described herein is subject to all the terms, exclusions and conditions of such policies. Laynes drilling work resulted in property damage and third-party claims by a property owner i claims by the MBTA against Barletta,v~ settled for approximat&y 1~

Contract Insurance Requirements

Barletta Heavy Division, Inc. v. Layne Christensen Co., 2011 WL1399692(D. Mass.)

Contract requirements Layne had to preserve and protect from injury all property which may be affected by its operations Laynes proposal (incorporated into contract) Layne not responsible for damages to underground/overhead utilities, structures obstructions that interfere with

26

10/9/2012

Contract Insurance Requirements


Barletta Heavy Division, Inc. Indemnity provision
The Subcontractor shall indemnify, defend and hold the Contractor.. harmless from and against any and all claims, losses, costs, damages, liabilities [etc.]..., caused in whole or in part by any negligent act or omission of the Subcontractor... Jury found that while Layne was negligent, but found that Laynes negligence was not a substantial factor in c the damages v. Layne

Christensen Co.,

2011 WL1399692(D. Mass.)

Contract Insurance Requirements


Barletta Heavy Division, Inc. v. Layne Christensen Co.,
2011 WL1399692(D. Mass.)

Insurance provision

Subcontractor shall maintain and pay for all insurance of the types and equal to or greater than the limits as required of the General Contractor in the [General] Contract Documents and as set forth on the attached... Exhibit C.... Subcontractor shall forward an executed Certificate of Insurance to the Contractor with the return of this Subcontract.... The General Contractor shall be named as an additional iw on the general and automobile liability policies.

27

10/9/2012

Contract Insurance Requirements


Barletta Heavy Division. Inc. v. Layne Christensen Co., 2011 WL 1399692 (D. Mass.) Insurance provision
.

Exhibit C included [cjlaims for damages because of injury to or destruction of tangible property, including loss of use resulting therefrom. Exhibit C specified a property damage policy limit under the CGL policy of $2,000,000

Contract Insurance Requirements

Barletta Heavy Division, Inc. v. Layne Christensen Co., 2011 WL 1399692 (D. Mass.) Barletta brought declaratory judgment action against Laynes carrier, Zurich, in Norfolk Superior Court Court concluded that claims were excluded from coverage (Laynes acts or omissions did not cause the damages) but that Zurich had a ch to defend Barletta with respect to cL~ because they arose out of Lr

28

10/9/2012

Contract Insurance Requirements


Barletta Heavy Division, Inc. v. Layne Christensen Co., 2011 WL1399692(D. Mass.)

Barletta settles defense costs with Zurich for $200,000 and settles claim costs with its own insurer, Charter Oak, for $300,000 Barletta argues Layne liable for $600,000, based on failure to provide primary insu ($300,000 plus attorneys

Contract Insurance Requirements


Barletta Heavy Division, Inc. v. Layne Christensen Co., 2011 WL1399692(D. Mass.) Barletta unable to make claim under Zurich

policy because total damages alleged were less than $500,000 deductible Contract insurance requirements did not indicate whether a deductible was accr-~or how much

29

10/9/20 12

Contract Insurance Requirements


Barletta Heavy Division, Inc. v. Layne Christensen Co.,
2011 WL 1399692 (D. Mass.) Court found that Layne was responsible to

pay any deductible applicable to a claim of Barletta falling under the policy Named insured is generally responsible for deductible

Contract Insurance Requirements


Barletta Heavy Division. Inc. v. Layne Christensen Co., 2011 WL 1399692 (D. Mass.)

claims were not covered under Zurich policy Exclusions were contained in standard ISO forms Court found it unreasonable for Barletta to expect insurance without the exclusions applicable here, therefore Layne did not vio~ Subcontract by procuring insurance if excluded these claims
-

Layne not responsible for deductible because

30

10/9/2012

Contract Insurance Requirements


Barletta Heavy Division, Inc. v. Layne Christensen Co., 2011 WL1399692(D. Mass.) Takeaways Conflicting language in proposals/contract documents Importance of insurance requirements Language regarding deductibles Action-based indemnity language v. based indemnity Ia n~-~-

Certificate of Insurance Issues


Suffolk Construction Co. v. Illinois Union Ins. Co., 80 Mass. App. Ct. 90 (2011)

30 story apartment building construction in Boston Suffolk subcontracted concrete work to S&F Concrete Suffolk obligated S&F to require its lower-tier subcontractors to maintain CCL insuranc name Suffolk as an additional i liability policies

31

10/9/2012

Certificate of Insurance Issues


Suffolk Construction Co. v. Illinois Union Ins. Co., 80 Mass. App. Ct. 90 (2011)

S&F subcontracted by purchase order with Hallamore for the rental and operation of two cranes at the project site. Illinois Union was Hallamores CGL carrier. The purchase order made no reference to the addition of insureds to Hallamores CCL policy. Hallamores president considered it a contractual du~ to include Suffolk and S&F as additional insui Hallamores policy with Illinois Union.

Certificate of Insurance Issues


Suffolk Construction Co. v. Illinois Union Ins. Co., 80 Mass. App. Ct. 90 (2011)

Hallamores insurance agent subsequently forwarded a Certificate of Insurance to S&F describing S&F and Suffolk as additional insureds under Hallamores CGL policy with Illinois Union. However, the certificate stated, THIS CERTIFICATE IS ISSUED ASA MAHER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOTAMEND, EXTEND OR ALTER THE COVERAGEAFFORDED BY THE [pertinent general liability policy]. A certificate of insurance with this lan~uage does not accc~ the addition of insureds to the ~ the poli Comm. v. Gall, 58 Mass. App.
~.

32

10/9/2012

Certificate of Insurance Issues


Suffolk Construction Co. v. Illinois Union Ins. Co., 80 Mass. App. Ct. 90 (2011)
The additional insured endorsement in Hallamores

CGL policy provided by Illinois Union set out schedule space for additional insureds, with additional language AS REQUIRED BY CONTRACT, PROVIDED THE CONTRACT IS EXECUTED PRIOR TO LOSS (emphasis e~

Certificate of Insurance Issues


Suffolk Construction Co. v. Illinois Union Ins. Co., 80 Mass. App. Ct. 90 (2011)

Oiler working for Hallamore fell off a ladder at the work site and sued Suffolk and S&F on a negligence theory for claimed negligent maintenance of an unsafe work area. Suffolk and S&F called upon Illinois Union to provide them defense and indemnity, arguing that the S&F purchase order, subsequent correspondence including S&Fs request that Hallamore add Suffolk and S&F as additional insureds, and the insurance agents certificate of insurance together constituted evidence of an oral agreement by H name Suffolk and S&F as additional insureds~

33

10/9/2012

Certificate of Insurance Issues


Suffolk Construction Co. v. Illinois Union Ins. Co.~ 80 Mass. App. Ct. 90 (2011)
Court ruled for Illinois Union, however, based on the executed language in Illinois Unions policy. The ordinary meaning of executed refers to a signed contract, or a legal document made valid by signing. Because there was no signed, written agreement requiring Hallamore to include Suffolk and S&F as additional insureds, the Court found that Illinois Unii did not owe either of them defense or indemr the claims of the injured worker.

Certificate of Insurance Issues


Hiqqinsv. HHI Corp., Inc.,

2011 WL7788020 (Mass. Super.)


Plaintiff injured on a residential construction project when he was struck in the head by a framing nail fired from a nail gun by a co-worker. He was an employee of the framing subcontractor for the project. HHI brought a thirdparty action against the framing subcontractors insurer, claiming it was an additional insured under the subcontractors CGL policy. Insurer motion for summary judgment that HHI was additional insured under its liability policy subcontractor.

34

10/9/2012

Certificate of Insurance Issues


Hiqqinsv. HHI Corp., Inc., 2011 WL7788020 (Mass. Super.) endorsement allowing certain persons or entities to become an additional insured if subcontractor was performing work for them and the two parties agreed in writing in a contract or agreement that such person or organization be included as an additional insured on your policy. HHI based its claim on receipt of an u ~ certificate of insurance apparentl subcontractors i nsuran~
- -

Policy provided a contractors extension

Certificate of Insurance Issues


Higgins v. HHI Corp., Inc., 2011 WL7788020 (Mass. Super.)

The Court ruled for the insurer. The certificate did not purport to be a contract or agreement between HHI and the subcontractor. The Court noted the disclaimer language in the certificate expressed to the contrary. The Court further found that there was no evidence the insurance broker acted as the agent of the insurer when the certificate was created and issued. The insurer had no duty to defend or indemnify HHI. Implied but not clear from the decision if there written contract between HHI and this su~4 was no insurance requirement in ti

35

10/9/2012

Certificate of Insurance Issues

BOTTOM LINE 1. Do not trust certificates of insurance. 2. Review the policies, including any exclusions or endorsements, to confirm coverage.

Certificate of Insurance Issues


I

A Certificate of Insurance is not itself a valid endorsement to a policy and usually does not provide the specifics of what may be covered if an actual policy endorsement has issued. Standing alone, certificates of insurance generally contain disclaimer language stating:
THIS CERTIFICATE IS ISSUED AS A MAHER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW

Additional disclaimers are typically present advising the certificate holder:


THE INSURANCE AFFORDED BY THE POLIcIEs [ SUBJECT TO ALL THE TERMS, EXCLUSIONS AND POLICIES.

In other words

YOU HAVE TO

36

10/9/2012

Certificate of Insurance Issues


Massachusetts courts have generally held that the disclaimers on the Certificate are sufficient to put the certificate holder on notice to obtain a copy of the policy and confirm the coverage provided. Commonwealth v. Gail, 58 Mass. App. Ct. 278 (2003)

(2004) (mhis court finds that the certificate of insurance is an

G. Conway, Inc. v. Tocci Bldg. Corp., 18 Mass. L. Rptr. 565, 566 informational document evidencing the existence of an insurance policy ).

Shumway v. Eastway Plaza, 2002 WL 533863 *7 (Mass. Super.)(The certificates language, in clear, unambiguous terms, reminds any additional insured of the insurance truism U t if it~ wants to know what it is covered for, it has to read the

-~

Public Construct Law Update


w Questions?

37

Exhibit 5

Front Page Massachusetts Lawyers Weekly Articles Where Christopher J. Petrini Cases Were Highlighted or Mr. Petrini was Ouoted as a Legal Expert

I. Front Page MEW Articles Reporting on CJP Cases: 1. 2. 3. 4. 5. 6. 5/26/03 7/21/03 3/1/04 7/23/07 9/1/08 3/29/10 John D. Cunningham David E. Frank John D. Cunningham John D. Cunningham Eric T. Berkman Eric T. Berman Bylaw Permitting Smoking Trumped by Board of Health Town Not Required to Supply Public Services to Developer Town Must Split Costs for Sewage Expenses Attorney-Client Privilege Protects DCAM Documents Police OT Can Be Cut Notice on OT Not Required of Municipality

II. Front Page MLW Articles with CJP Quoted: 7. 8. 9. 10. 11. 12. 13. 1/4/10 8/16/10 8/22/1 1 11/3/11 1/30/12 6/4/12 9/17/12 David E. Frank Phillip Bantz Eric T. Berkman David E. Frank Al Turco (p. 3) David E. Frank Eric T. Berkman Town board can hire own lawyer Law extending permits received mixed reaction Insurers malpractice suit vs. town counsel allowed State database will reveal spending by judges, staff Law firms lining up for casino contracts Land Use Attorneys Split on Impact of Regis Ruling Town Can Charge Sewer System Fee: Developers Protest Impermissible Tax

Last Updated: 9/17/12 2012.01.3] List of CJF MLWArticles (2700-07 CJP).doc

Exhibit 6

LAWYERS WEEKLY
~
From the March 01, 2004 Massachusetts Lawyers Weekly.

MASSACHUSErIS

Towns Must Split Costs For Sewage Expenses


By John 0. Cunningham Two towns that shared sewer facilities were required to split operating expenses and all future capital costs for all shared systems, the Massachusetts Department of Telecommunications and Energy has decided in a rare 54-page ruling. The Town of Ashland, as respondent, argued that capital cost sharing should be limited to shared interceptor sewers and piping because there was no evidence that its sewage caused any overflows to the existing Framingham system. But a panel of commissioners at the DTE disagreed, ordering the respondent to pay a proportionate share of future capital investment costs, as well as maintenance and operations costs. [B]ecause the parties are in agreement that [a] subset of pipes is used by Ashland the Department finds Ashland must contribute a share of the capital cost for projects related to those facilities identified by Framingham includ[ing] all structures that are appurtenant to the eligible pipe segments, the panel said.
.. ... .

In particular, the panel determined that Framingham may include all prudently incurred projectrelated costs, including engineering, design, construction, resident services and bidding, in the total capital cost of a project.
...

The panel also adopted Framinghams formula for operational cost sharing based on ratios of sewage flows between the towns because it met DTEs stated goals of fairness and simplicity. The decision is Town of Framingham v. Town ofAshland, Lawyers Weekly No. 27-003-04. Intermunicipal Agreements Christopher J. Petrini of Boston, co-counsel for the petitioner, said that the factors considered by the OTE and the analysis that it employed could well impact the interpretation of other communities interrnuriicipal agreements regarding the transport or treatment of sewage.
...

While this was the first sewage-sharing case decided by the DTE, co-counsel Erin K. Higgins noted that there have been other special acts [of legislation] that authorized particular municipalities to enter into [such] agreements.

She credited the victory in part to the weight given to the petitioners expert witnesses and expert analysis based on the history of dealing with shared wastewater treatment systems. Petrmni added that the simplicity and fairness of Frarninghams proposed method of cost sharing carried the day with the panel, which effectively imposed a new agreement to replace one that had ceased to be effective through a common opener clause. Noting that Ashlands share of annual expenses would now increase by more than $270,000 per year, Petrini suggested that towns could benefit from revisiting allocations made under old agreements. He also observed that the decision has broad potential applicability given numbers of other intermunicipal arrangements for growing suburban towns with limited infrastructures during times of budgetary crisis.
V

Joseph F. Hardcastle of Boston, who has extensive experience in litigating telecommunications cases before the DTE, said that the decision is a great illustration of how the DTE approaches any rate-setting dispute and what a party needs to do to wiri these types of disputes. He added that the DTE is a preferable forum for interpretation of rate-setting disputes because of the care and attention to detail provided by hearing officers who sift through and analyze expert testimony with many cross-examihation questions of their own. But Hardcastje cautioned that DTE has specific limits of jurisdiction.
V

While a dispute may cry out for the expertise the DTE offers, as a threshold matter you must-be able to show that you have the right to be there, he noted.

David M. Thomas of Boston, counsel for the respondent, could not, be reached for comment. Attorney Jesse S. Reyes of Boston acted as the hearing officer in charge of the proceeding who submitted the record to the commissioners for their written decision. An Old Agreement
V V

On Aug. 8, 2002, the Town of Framingharn filed a petition with the DTE requesting that charges paid by the Town of Ashland for shared sewage systems be reset The parties stipulated to jurisdiction under a special municipal act facilitating an intermunicipal agreement on sewerage that the parties entered into on Dec. 9, 1963. Under the old agreement, the annual charge to Ashland was just over $5,000 per year, with a portion of that covering all.amounts of sewage flow exceeding the first I million gallons. The agreement also stipulated that after 30 years Ashland hadmade full payment for its proportionate share of capital costs of Framinghams sewer system, and all further charges would be based on operating costs only. But the intermunicipal agreement also stated that Ashland should pay to Framing ham a fair and equitable proportionate share of the actual cost of the maintenance of the system.

Framingham argued that the appropriate formula for calculating Ashlands share of operational costs should be based Ofl Ashlands percentage of flow as part of the total system flow. Ashland countered with two, alternative formulas that were more complicated and based on inchmiles of sewage pipeline and usage. The parties agreed that it would be fair for Ashland to pay a percentage of total capital costs for the system incurred in the future because the system was in need of upgrading, but they disagreed on the method. Ashland argued for limiting its capital exposure to certain sewer trunk lines under the intermunicipal agreement Capital Costs The commissioners determined that the petitioner could recover cOntrib~tjons for capital costs on future improvements to shared systems although they might not present direct immediate benefit to the respondent The panel noted that the parties agreed that a monetary threshold of $25,000 and a useful Fife of five years could be used to distinguish capital projects from operational ones. it also noted that the respondent sought veto power over the petitioners wastewater infrastructure decisions while the petitioner simply proposed that the towns share costs based on ratios of peak flows with some credits given where either town does not need additional. capacity. The panel concluded that Framinghams proposed method for addressing increased flow from only one town is reasonable. The commissioners also found that in the case in which a larger capacity pipe is built to serve the increased needs of only one town, both towns shall contribute to the cost of the new facilities with the town not needing additional capacity to be credited with its share of remaining value of the existing facilities. They said that if both towns continue to use the shared facilities for many years, then the town not needing increased capacity would still benefit to some measurable degree from the capital upgrades. Operational Costs

The panel accepted the petitioners formula for sharing of operational costs. Framinghams formula meets the departments goal of simplicity, as its clearly defined terms make it easy to understand, the commissioners said. They added that the proposal also achieves the departments goal of fairness, as Ashland will be paying its proportionate equitable share of Framinghams sewer-related [operation and maintenance] costs. ,The panel stressed that it was guided by long-standing rate-setting goals of efficiency, simplicity, continuity, fairness, and earnings stability.
V

It noted that the proposal of the petitioner achieved those goals, while the respondents proposal was more complex and harder to apply. Even if reliable in~h-miIa data were available, inCludj~g an inch-mile ratio factor, in addition to a flow ratio, would be inappropriate the pane! said. Commissioners concluded that any discounting of the respondents share of costs beyond that of the flow ratio system proposed by the petitioner would send an improper signal to Ashland regarding the true cost of the service that Framingham. provides. Questions or comments may be directed to the writer ~

2004 Lawyers Weekly Inc., All Rights Reserved.

Exhibit 7

i)~X~~~RS ~
ww~messiawyersweeldy~co,n
From the July 21, 2003 Massachuse~ Lawyers Weekly.

Town NotRequired To Supply Public Servjces To Developer


Trash Pickup To Low-Income Units Was Curtailed
By John 0. Cunningham A town was not required to provide municipal services such as trash pickup to developers of lowincome apartments, a Superior Court judge has ruled. The plaintiff developers argued that their status as a G.L c. 121A corporation precluded the town from altering an arrangement where the developers received financial incentives including free trash pickup to develop the apartitients.

But Judge Margaret R. Hinkle disagreed, granting the defendant towns motion for summary judgment on several counts. Hinkle acknowledged that Section 6A of Chapter 121A makes developers immune from changes in terms and conditions of the financial arrangement [made with a town], particularly the Sect 10 t~ concessions. But the judge added that Section 6A does not protect owners of Chapter 121A projects from changes which deal with matters of general regulation of the community in a manner closely related to its health, morals, safety and fundamental welfare.
...

The 17-page decision is Corcoran Management Co., Inc., et at v. Town of Framingham, Lawyers Weekly No. 12-173-03. Significant Decision Christopher J. Petrini of Boston, counsel for the defendant town, Said that the decision is significant because there are a number of Chapter 121 A corporations, some of them quite prominent and it is not unusual for such corporations to claim entitlement to special beheflts.
He added that this decision analyzes and rejects a claim that [such] corporations are entitled to special benefits with respect to municipal services by virtue of their Chapter 121A status.
...

In so doing, according to Petrini, the ruling ~implicitIy rejected the plaintiffs argument that by virtue of their Chapter 121A status they are instrumentalities of the state and municipal services such as trash pickup cannot be taken from them.
...

He suggested that this issue may come up in other municipalities because cities and towns are
faced with large budget cuts and resulting reductions in services.

TimothyM. Corcoran of Milton, counsel for the plaintiffs, could not be reached for comment prior to deadline.
Taking Out The Trash Two plaintiff development corporations owned two apartment complexes, each with over 250 units of low- to moderat~..incorne housing, and another plaintiff, Corcoran Management Corp., provided management and leasing services for the corporations. The apartments were constructed in 1960 when curbside trash pickup was provided by the town at no charge, but there was no application for Chapter 121A status until rehabilitation of the apartments in 1990. The application contained an Exhibit G entitled Division of Operating Expenses,IT which listed garbage and trash removal as an allocation expense. By virtue of Chapter 121A, the complexes were also made tax exempt for 40 years arid the corporations paid urban redevelopment fees in lieu of taxes. On Jan. 26, 1990, the Framingham Housing Authority and the town executed an agreement regarding low-income housing and payments in lieu of taxes, which provided that The Authority shall make annual payments in lieu of taxes and in payment of public services and facilities furnished from time to time without cost or charge.
~. ...

The agreement also provided that the town: further agrees to furnish to the Authority and the tenants of such housing public services of the same character as are furnished from time to time without cost or charge to other dwellings in the municipality.
... ... ...

Other so-called Section 6A agreements between the corporations and the town provided for additional excise payments under some circumstances, but did not address municipal services such as trash collection. On June 28, 1999, the Board of Public Works formally approved a sanitation policy requiring dwellings of more than four units to provide or pay for their own trash removal. In March 2002, the town manager learned that the plaintiff corporations were receiving trash pickup at their apartments, and he contacted the senior property manager to asic for evidence that the units were entitled to curbside pickup. The property manager insisted that it was the practice of the plaintiff corporations to reach a clear understanding with local officials about municipal services prior to application for Chapter. 121A. statue, and added that the towns past conduct and practices affirmed that The town manager reviewed the Chapter 121A documents and concluded that they did not obligate the town to provide trash pickup: the town discontinued trash services to approximately 5,000 residential units in December 2002.

The annual cost to the town for picking up the trash from the plaintiffs units was approximately $88,000, a cost the plaintiff developers had to assume. The plaintiffs filed an action against the town on April 30, 2002 alleging breach of contract and breach of the implied covenant of good faith. No Obligation Hinkle rejected more than one argument by the plaintiffs in finding that the town had no obligation to continue picking up trash. She specifically rejected. an argument that the town and the plaintiff considered the benefit of trash services when entering into the so-called Section 6A agreements, but she acknowledged that the Chapter 121A application and the agreements should be read together as an expression of the parties intent Still, the judge found that [r]eading the Application and the GA Agreements as a whole does not show that the parties intended trash pickup by the town to be an implied obligation. 1-linkle said that a statement in the application that there will be no significant increase or decrease in public services needed by the project was a broad reference to municipal services such as fire and police protection, and it did not indicate any implied promise regarding trash pickup.
-

She also rejected the notion that the cooperation agreement between the town and the housing authority obligated the town to provide trash removal services. The judge said that a third person, such as a development corporation, can be a beneficiary of a contract only if the promisee intends to give the third person the benefit of the promised performance. Hinkle did not see the cooperation agreement itself as evidence that the town and the housing authority intended to benefit the plaintiffs in allocating expensessuch as trash collection She also rejected the idea that the town could not charge for services that would alter the original financial incentives to rehabilitate the apartments. Although the expense of trash collection might impact the plaintiffs return on their investrhent trashcollection is not a term and condition of financial arrangement addressed in Chapter 121A, the judge concluded.

Questions or comments may be directed to the writer at icunninghamt~lawyersweelcly.corn.

20O3 Lawyers Weekly Inc., All Rights Reserved.

Exhibit 8

Massachusetts Lawyers Weekly Police OT can be cuti of 3


-

PthL~

Police OT can be cut


David B. Frank Published: September 1, 2008 First decision to be issued since key Agawam ruling The attorney representing a town in a lawsuit filed by police officers seeking up to $1.5 million in overtime pay says aU.S. District Court judges ruling clarifies, for the first time, what steps must be taken to ciomply with the Fair Labor Standards Act. Relying on the statutes public safety exemption, which permits municipalities to alter law enforcement wage schedules, Judge George A. OToole Jr. agreed that the defendant town of Framingham was entitled to create a pay cycle in which officers could qualif~ for overtime only by working at least 147 hours in a 24-day period. What the judge is saying is that if a town has taken bona fide steps to declare an alternative work period, they have an absolute right to do so, said Christopher J. Petrini, who represented Franiingham. As we pointed out to the District Court, there were several steps taken here, which included a memo that had been circulated around that the police chief, the fire department heads and other people were awnre of. That evidence allowed us to show that the town bad declared the [statutes] work exemption. The plaintiff police officers countered that the town had failed to properly implement the altered pay period, as required by the 1st U.S. Circuit Court of Appeals landmark 2003 decision in OBrien,. et at. v. Town of Agawam, et aL, a case in which the court held that the FLSAs public safety exemption in 29 U.S.C. 207(k) can be triggered only when proper notice is provided. Rather than requiring a traditional 40-hour week pay structure, OToole granted summary judgment in favor of Framingham after finding the town had complied with the statute and the 1st Circuits ruling. Understood most favorably to the plaintiffs, [Agawarn] requires a Town both to announce the adoption of a qualifying work period and to take bona fide steps toward implementing the announced work period, he wrote. Here, the record is clear that the Town satisfied both steps. The eight-page decision is Calvao v. Town of Framingham, Lawyers Weekly No. 02-172-08. Post-Agawani http://www.masslawyersweekly.com/index.cflnlarchive/Prh1tJid14447289/l 1/2008

Massachusetts Lawyers Weekly Police OT can be cut2 of 3


-

Petrini said the case before OToole was the first since Agawam in which a court was asked to define the meaning of bona fide steps. Agawam is a really important decision thats prompted several important rulings, but this is the first Im aware of that dealt with the question of what the court needs to find a bona fide step has been taken under the statute, he said. We had to look to other jurisdictions to support our argument on what the applicable standard should be. Jack S. Canzoneri of McDonald, Lamond & Canzoneri in Southborough, who represented the plaintiff officers, said he plans to appeal on grounds that the judge should have given greater deference to the Department of Labor, which oversees FLSA disputes. The Department of Labor in 1994 issued an order indicating that there not only has to be a declaration, but the employees must have actually been paid in accordance with its provisions, he said. When this lawsuit was filed, there was simply no evidence that Framingham had done that. Even though the threshold is low for cities and towns, John D. Connor of Springfield, a plaintiffs labor lawyer who successffilly represented the police officers in Agawam, said the 1st Circuit clearly held in 2003 that an employer must present evidence of an intent to establish a qua1i~ing work period. Its a very minimal standard, but the town has to make some affirmative step with the intent of having that be a designation of a quali~ing 207(k) work period, he said. You could, for instance, send a memo to the union saying: We are hereby adopting a 207(k) work period. But the bottom line is you have to take some affirmative steps. Unlike in Agawam, Connor, who was not involved in the Framingham suit, said the steps taken in the case before OToole seemed appropriate. If there was a memo or some type of notice on the part of the employer saying they wanted to designate a 207(k) work period, that sounds like enough, he said. I have read every case in every circuit on this issue, and if that kind of evidence is there, thats going to be sufficient in my view. Connecticut attorney David A. Robinson, who represented the defendants in Agawam, said upon reviewing OTooles decision, the evidence showed there was an explicit declaration that was communicated to the police officers. All that the 1st Circuit said in {Agawam] is that the town has to adopt or simply announce that it chooses to pay overtime based on a period of at least seven, but no more than 28 days, he said. And that is certainly what the evidence shows Framingham did. OT battle In 2005, a group of 50 police officers, led by Duarte Calvao, filed a federal lawsuit seeking pay for hours the officers spent on duty that exceeded the traditional 40-hour-week threshold. Claiming the departments work structure system violated the FLSA, the officers sought back pay from the past three years. The town argued the officers were working on a 24-day work cycle, which was created in 1986. Under that schedule, the officers worked on a five-day on, three-day off rotation, which the parties agreed made it tougher to accrue overtime pay. In response, the officers claimed the alternative work shift was not adequately communicated to them, and the town had failed to take proper steps toward implementation. At summary judgment, the town argued it had clearly created the work cycle in 1986 and had take http://www.masslawyersweekly.com/index.Cfin/archive/Printlid/4447239/l1/2008

Massachusetts Lawyrs Weekly Police OT can be cut3 of 3 sufficient bona fide steps to declare the work period via a memorandum issued by the town administrator.
-.

The document the town claimed, had been circulated to various departments affected by the change, including the police and fire departments. Proper steps In ruling against the officers, OToole held that they were entitled to overtime wages only for hours worked in excess of 147 hours in a 24-day work period. He wrote that, in 1986, the town distributed a memo entitled Declared Work Period Police and Fire Personnel.
-

The memo, which he found was sent to the police and fire chiefs, personnel director and town counsel, stated that Framinghams declared work period for police and fire shifts was 24 days. It is evident that the Town distributed the 1986 Memorandum to the relevant department and town offices, for the purpose of implementing the Towns election of the [statutes] exemption, he wrote. These bona tide steps are all that was necessary to meet that aspect of the test set forth in [Agawam]. Although the officers presented evidence that some former town officials, including the then-town counsel and town administrator, did not recall the memo, OToole wrote the evidence showed otherwise. [T]heir failure to recall is not affirmative proof that the unremembered event did not occur, he wrote. The documentary record contains copies of various contemporaneous memoranda that more than adequately establish the historical fact that the Town elected to take advantage of the 207(k) exemption by adopting a qualit3ing work week.

http ://www.masslawyersweekly.com/index.cfInlarchive/pijntjk1/4447289/l 1/2008

Exhibit 9

Print

I~1

Notice on overtime not required of town


By Eric T. Berkman Published: March 29, 2010

A town was not required to notify police officers before taking advantage of a limited public-safety exemption from overtime requirements under the Fair Labor Standards Act, the 1st U. S. Circuit Court of Appeals has found. The officers, who had brought a putative class action against Framingham, argued that the town could not establish the qualifying work period that the FLSA provision, 207(k), requires for an exemption to take effect without notifying them first. But the 1st Circuit disagreed, granting summary judgment to the defendant town. We reject the plaintiffs argument in light of 207(k)s text and history, as well as the interpretive guidance given by the Department of Labor in its regulations, Chief Judge Sandra L. Lynch wrote for the court. On the undisputed facts, the towns actions were sufficient to establish a qualifying work period, despite the asserted lack of notice to its employees. The 18-page decision is Calvao, et al. v. Town ofFramingham, Lawyers Weekly No. 01-068-10. The full text of the ruling can be found by clicking here. Budget-busters Christopher J. Petrini of Framingham, who represented the town, said the decision will resolve considerable uncertainty in the 1St Circuit about the steps cities and towns need to take in order to claim the exemption, which allows municipalities to establish a longer qualified work period of seven to 28 days. During the maximum 28-day work period, 207(k) allows public-safety employees to work an aggregate 216 hours a more flexible threshold than under a 40-hour workweek before overtime pay kicks in. The threshold under shorter qualified work periods is calculated proportionate to the 216-hour cap.
-

If the ruling had gone the other way, Framingham and other municipalities in a similar position would have faced large budget-busters in the form of retroactive overtime based on a 40-hour workweek, Petrini said.

It could have resulted in a perfect storm of draconian impacts because of the major deficits that Framingham and other cities and towns are already facing, he said. Health insurance costs to cities, towns and school systems are extremely high. There have been major layoffs [of town employees] already in Framingham, and this could have resulted in substantially more. Plaintiffs counsel Jack J. Canzoneri of McDonald, Lamond & Canzoneri in Southborough criticized the ruling as focusing too narrowly on the concept of formal notice when his clients never contended notice needed to be formal. We certainly felt and argued that formal notice to employees would be sufficient, but we didnt argue that it was the linchpin, said Canzoneri, whose clients are considering whether to petition the U.S. Supreme Court for further review. We argued that, in one way or another, employees needed to be put on notice because either they were paid in accordance with the work period, and, therefore, they could actually observe that it was being implemented or, for example, on their paycheck there could be some notation about what happened in that period of time. But while Canzoneri predicted that the ruling would embolden employers seeking to implement the exemption without notice, he said its impact would be blunted, at least in Massachusetts, where the Supreme Judicial Court ruled in its 2009 City ofBoston v. Commonwealth Employment Relations Board that establishment of a 207(k) work period is a subject of collective bargaining. Petrini was not so certain. Im sure unions will argue that point in their favor, he said. But the state law cannot interfere with a protected federal right, and 207(k) is one of the few sections of FLSA that is actually intended to protect the employer. Overtime contest Under FLSA, workers are typically entitled to overtime after working more than 40 hours in a seven-day period. In 1974, acknowledging that the cost of overtime for municipal workers was exacting a toll on cities and towns, Congress passed 207(k), amending FLSA to create a partial exemption for police and firefighters. The partial exemption set a higher threshold number of hours that public-safety employees could work in a 28-day work period or a proportional number of hours in a shorter work period of at least seven days before overtime was required. It was intended to accommodate the unpredictable reality of such work, when slower periods are often offset by intense ones that demand more hours from police and fire personnel.
-

On April 11, 1986, the town executive in Framingham sent a memo to the police and fire chiefs, the personnel director and town counsel declaring a 24-day work period commencing on April 13. No evidence exists as to whether the town circulated a copy of the memo to the police officers union or to individual officers, or whether the town notified officers of the declared work period in any other way. Prior to the memo, Framingham police officers worked a 4-2 schedule in which they would have four days on duty followed by two days off. In 2000, as part of a new collective bargaining agreement, the officers union negotiated a 5-3 schedule. Since both schedules divided evenly into the towns declared 24-day work period, they complied with 207(k). In April 2005, a group of police officers brought a putative class action suit against the town in U.S. District Court, seeking damages for its alleged violation of FLSA for failure to pay sufficient overtime.

Predicting that the town would cite the 24-day work period as a defense, the plaintiffs sought a declaratory judgment that the town was ineligible for the public-safety exemption because it had not properly notified them of the work period. Judge George A. OToole granted summary judgment for the town, finding that it had no obligation to notify the plaintiffs before establishing a valid work period under 207(k). The plaintiffs appealed. No notice required The 1St Circuit rejected the plaintiffs contention that notice of a valid work period was required in order for the public-safety exemption to take effect. Looking first to the text of 207(k), Lynch said the text does not specify the steps for establishing a qualified work period and contains no reference to a notice requirement. Meanwhile, the legislative history behind the provision supported the town, the judge said, noting that Congress had explicitly rejected a proposal that would have mandated employee agreement before establishment of a 207(k) work period. The town argues this is indicative that not only was there no agreement required but no notice was required, Lynch said. This reading is consistent with Congresss goal of ensur[ing] that public agencies would not be unduly burdened by the FLSAs overtime requirements. Turning to rules promulgated by the U.S. Department of Labor in implementing 207(k), Lynch observed that the resulting regulation, 553.224 of the Code of Federal regulations, plainly rejected both a requirement that municipalities make a formal statement of intention [to establish a work period] and a requirement that they obtain agreement. That undercut the plaintiffs argument that 553.224s reference to an established work period could be interpreted as a notice requirement, Lynch said. Finally, the 1st Circuit rejected the plaintiffs contention that a 1994 letter ruling by an administrator at the Department of Labor mandated a notice requirement and was entitled to deference by the court. First, the letter ruling made no mention of a notice requirement, Lynch said. It said only that [a]n employer must designate or otherwise objectively establish the work period and pay the affected employees with its provisions.
... ...

Additionally, the judge pointed out, the letter ruling was in response to a specific decision by the 1st Circuit that addressed different issues. Finally, the secretary of labor explicitly rejected the position that the plaintiffs attributed to the letter ruling, stating clearly during the rulemaking process that employers need not formally declare their intention to pay employees under 207(k), Lynch said. Accordingly, [the plaintiffs] argument fails, the 1st Circuit concluded in affirming summary judgment for the town.
For more information about the judges mentioned in this story, visit the Judge Center at www./udgecenter. corn. Eric T. Berkrnan, an attorney andformerly a reporterfor Massachusetts La~iyers Weekly, is a freelance writer. CASE: Calvao, et al. v. Town ofFrarningharn, Lawyers Weekly No. 0 1-068-10

COURT: 1st U.S. Circuit Court of Appeals

ISSUE: Was a town required to notify police officers before taking advantage of a limited public-safety exemption from overtime requirements under the Fair Labor Standards Act? DECISION: No, because there was no evidence of such a requirement in the language of the exemption provision, in its legislative history or in administrative regulations promulgated to implement it

Public Notice Is Not Required When Employers Adopt Longer Work Periods, 1st Circuit Rules
Employers need not notify firefighters and police of ficers before adopting a work period longer than the usual 40-how workweek under the Fair Labor Standards Act, a federal appeals court ruled recently. In Calvao v. Town ofFrarningham, the 1st U.S. Cir cuit Court of Appeals found that neither the FLSA, its legislative history nor its implementing regulations re quire such notice. Section 207(k) of the law allows em ployers of public safely officers to adopt work periods of as long as 28 days as an alternative to the acts stan dard 40-hour workweek (see Tab 600 ofthe Handbook). The Calvao decision protects employers under the! jurisdiction of the 1st Circuit Maine, Massachusetts, New Hampshire, Puerto Rico and Rhode Island from forfeiting 207(k)-exempt status even if they never for mally notified their employees.

Work Periods Section 207(k) permits state and local governments to work law enforcement and fire protection employees more than 40 hours in a workweek without paying them overtime. Instead, overtime pay for those workers is calculated on the basis of a work period. A~work period is any established and regularly recurring period of work that is not Less than seven consecutive days nor more than 28 consecutive days (29 C.F.R. 553.224(a)). Under the section 207(k) exemption, overtime com pensation is due after an employee works more than a certain number ofhours, depending on the length of the work period (see 611 of the Handbook). For example, for a 28-day work period, law enforcement employees are due overtime for each hour worked over 171, and for a seven-day work period, they are due overtime for each hour over 43. For police and firefighters to qualify for the section 207(k) exemption, their employer must establish a work period for them (29 C.F.R. 553.224(a); see
See Work Period, p. 13

Many other employers are similarly protected. The significant majority of the case law, particularly at the appellate level, is consistent with the Calvao case regarding the elements required to establish a 7(k) work period, noted Brian P. Walter, a partner in the Los An geles office of Liebert Cassidy Whitmore and a member of the Handbooks editorial board (see box, p. 13).

What Is a Work Period?


The Calvao case (see story, above) highlights the need for employers to understand the difference between the terms work period and workweek under the Fair Labor Standards Act. Because the FLSAs section 207(k) exemption requires employers to designate a regularly recurring period ofwork lasting anywhere from seven to 28 days in place of the regular workweek, the term work period indicates a period of time within those limits on which the employer bases its computations of its employees overtime pay (29 U.S.C. 207(k)). The work period serves the same purpose as the regular workweek of 40 hours (when the section 207(k) ex emption is not applicable). The work period is not the same thing as a pay period or an employees duty cycle. U.S. Department of Labor regulations fUrther specify that:
(a) Once the beginning and ending time ofan employees work period is established ..., it remains fixed regardless ofhowniany hours are worked within the period. The beginning and ending of the work period may be changed, provided that the change is intended to be permanent and is not designed to evade the overtime compensation requirements of the Act (b) An employer may have one work period applicable to all employees, or different work periods for different employees or groups of employees. (29 C.FR. 553.224) Once a work period has been chosen, overtime is paid when the employee works more than the maximum number of hours designated for each work-period length, as found in DOLs (able of maximum hours standards (29 C.F.R. 553.230; see 611 of the Handbook). As with overtime based on a 40-hour workweek, overtime compensation under the section 207(k) exemption is one and one-half times the employees regular rate of pay (29 C.F.R. 778.108). fi

L
12

Dis ~btlat3 bias churns up 10% Find out bow to piotcu your self at ww~~ thompson com/thsabtht) May 20101 FaIr Labor Standards Handbook (i thompsnn.com

Work Period (continued from p. 12)


603 of the Handbook). In most state and local govern ments, establishing the work period is an administrative declaration. Within these limitations, the work period may be of any length and need not coincide with the workweek, the pay period or with a particular day of the week or hour of the day (see box, p. 12).

What Constitutes an Established Work Period? The Calvao plaintiffs claimed their employer never established a work period because it never provided them advance notice of the designated work period. As a result, they claimed they were owed back overtime
damages.

In deciding whether the employer properly estab lished a work period, the 1st Circuit considered three things: the text of the statute, its legisLative history and its implementing regulations. The text of section 207(k) does not speci1~ that a public employer is required to establish a work period or identiQi how an employer might do so, the court held. Further, the text contains no requirement of notice to the affected employee. Section 207(k)s legislative history also supports an interpretation that public notice is not required, the 1st Circuit held, noting that Congress explicitly rejected a proposal requiring that employers obtain &mployee agreement before establishing a work period (H.R. Rep. No. 953, 93d Cong., 2d Sess. (1974) (Conf. Rep.)). Finally, the 1st Circuit noted that a U.S. Department of Labor regulation (29 C.F.R. 553.224(a)) plainly rejected both a requirement that municipalities make a formal statement of intention and a requirement that they obtain agreement. When DOL issued the regula don in 1987, it noted that unlike compensatory time off agreements (see 560 of the Handbook), there is no re quirement in the Act that an employer formally state its intention or obtain an agreement in advance to pay em ployees under section 7(k) (52 Fed, Reg. 2024-2025). The 1st Circuit concluded that, although Section 553.224s reference to an established work period is the foundation of plaintiffs claim, the rule in fact in cludes no procedural steps of any kind, let alone a notice requirement. The court rejected the plaintiffs claim and found the employer free of back overtime liability. (Calvao v. Thwn ofFrarningham, No. 09-1648, 2010 WL936553 (1st Cir. March 17, 2010)) fl

Other Appellate Court Rulings On the Work Period


The 1st U.S. Circuit Court ofAppeals ruling in Calvao v, Thwn ofFramingham (see stow, p. 12) is the most recent appellate court decision holding that public em ployers need not publicly declare a work period in order to take advantage of the EISAs 207(k) exemption. While other circuit courts have not issued rulings iden tical to Calvao, it is fair to say that in some Oases such a conclusion has been a necessary corollary, noted Christopher .1. Petrini, founding principal of Petrini & Associates P.C. in Framiogham, Mass., and an attorney for the defense in Calvao. The 6th U.S. Circuit Court ofAppeals, in Brock v. City of Cincinnati, rejected the officers conten tion that employers must specifically mention [the 207(k)] provision in their employment policies in order to take shelter in the rules safe barbor (236 F.3d 793 (6th Cit 2001)). The 8th U.S. Circuit Court of Appeals found in lviiincr v. Hardwood that [T]he [*207(k)] exemption need not be established by public declaration (165 F.3d 1222 (8th Cit ~999)).
The 7th U.S. Circuit Court of Appeals ruled in Barefield v. VI1L of Winoerka that a municipal employer

qualified for the 207(k) exemption, even though the work schedule at issue predated the enactment of section 207(k) and the employer made no declara tion of intent to come under Section 7(k) (81 F.3d 704 (7th Cir. 1996)).
The 10th U.S. Circuit Court ofAppcals wrote, in Spradling v. City of Tulsa, that a public employer

When its time to renew your subscription

may establish a 7(k) work period even without mak ing a public declaration, as long as its employees actually work a regularly recurring cycle ofbetween 7 and 28 days (95 F.3d 1492 (10th Cit 1996)). i~

Renew online at www.thompson.com/renew Save time. Save money. Save trees.

Learrt wcllnc as sO ategies that iutproi e ~otu bottom iwo Co to W14 t~ thompson onn/nelln

(~ thompson.com

May 20101 Fair Labor Standards Handbook

13

days leadi~ stories

The

Christopher J. Petrini

,NFrom.
(~jSent: To: Subject:

Employment LawSSO [news@portfoliomediani.comj Tuesday, March 23, 2010 3:00AM Christopher J. Petrini Employment Law360: Litigation, Policy & People News

LAvv3~ THE NEWSWIRE FOR BUSINESS LAWYERS


EMPLOYMENT LAW
LAW3SO HOME TRACK FIRMS SUBSCRIBE ADVERTISE

LAW~}.) TOP NEWS


!!9!:
in one news~ecter

High Court To Mull FLSA Coverage For Oral Complaints The U.S. Supreme Court on Monday agreed to hear a retaliation suit brought by a former Saint-Gobain Performance Plastics Corp. employee, following an appeals court ruling that his verbal complaints werent protected activity under the Fair Labor Standards Act. Health Care Bill Heads To Obamas Desk The U.S. House of Representatives has passed legislation to expand health coverage for millions of uninsured Americans and address major issues in the health care and pharmaceutical industries, including employer-sponsored insurance plans and approval pathways for generic drugs.

March 23, 2010 Law Firms Mentioned Akin Gump Baker & Daniels Baker & Mckenzie Croweli & Moring Deutsch Wiiliams
DLA Piper Friday Eidredge

,.~~uidant ERISA Plaintiffs Seek OK For $7M Settlement )roup of former Guidant Corp. employees has requested the certification of a class for a proposed $7 million settlement in a consolidated action accusing the defibrillator maker and its officers of breaching their fiduciary duty by mismanaging the companys employee pension plan.

MoEiroy Deutsch Morgan Lewis Nichols Kaster Paul Weiss Pepe & Hazard Sedgwick Detert Sheppard Muiiin Whyte Hirschboeck Williams & Connoily Wilson Sonsini Winston & Strawn Wolf Haldenstein Companies Mentioned Abbott Laboratories Boston Scientific Chesapeake Energy Citigroup DuPont Guidant Major Lindsey & Africa Pfizer Saint-Gobain Teliabs

Scandalous Allegations Nixed In Sedgwick Abuse Suit A New York state judge has struck mentions of a Sedgwick Detert Moran & Arnold LLP partners alleged affairs and drug use from the
complaint of a former associate who says the firm Illegally fired him after he suffered a nervous breakdown partly due to abuse at the hands of the partner. Roto-Rooter Faces Sex Bias Class Action A Roto-Rooter Services Co. employee has filed a putatIve nationwide class action that alleges the plumbing giant has continually denied promotions to qualified women in violation of Title VII.

Law360 Sections Appellate Bankruptcy A federal appeals court has denied a challenge to new mining safety rules brought by the National Mining Association, which argued that the Competition Contract rules were inadequateiy explained and unsupported by scientific data. Corporate Finance Empioyment Scores Win In 1st Circ. On Police OT Exemption~j Energy A federal appeals court has ruled that a city or town does not need to Environmental notify Its police officers before taking advantage of an exemption that Financial Services allows municipaiities to pay their officers less overtime than federal law Health 7 9uid otherwise require. IP Insurance Ordered To Review Safety After Worker Death intemational Trade Product Liability The U.S. Environmental Protection Agency has ordered DuPont Co. to

DC Circ. Backs Diesel Exhaust Mining Safety Rules

EMPLOYMENT LAW 360 ARTICLE MARCH 23~ 2010 Appellate Law360 Bankruptcy Law360 I Competition Law360 I Contract Law3O Corporate Finance Law360 I Employment Law360 I Energy Law360 Environmental Law360 I Financial Services Law360 J Health Law360 I Insurance Law360 I IP Law360 International Trade Law360 I Product Liability Law360 I Securities Law360 I Technology Law360 I Top News Law3O

City Scores Win Tn 1st Circ. On Police OT Exemption


By Mike Cherney Law3O, New York (March 22, 2010) A federal appeals court has ruled that a city or town does not need to notify its police officers before taking advantage of an exemption that allows municipalities to pay their officers less overtime than federal law would otherwise require.
--

()

The U.S. Court of Appeals for the First Circuit issued townruling Wednesday,Labor Standards Act Framingham, Mass., in a class action that alleged the the violated the Fair agreeing with by not paying its officers for additional overtime. At stake was as much as $2 million in damages, said Christopher Pefrmni, an attorney for the town. The ruling also provided the clearest indication yet of what a municipality must do in order to take advantage of the federal exemption, another attorney said. The clear purpose of Congress was that the municipality be able to take advantage of this more lenient time standard for overtime and, therefore, that means the municipality can unilaterally pick this, said John Foskett, who filed an amicus brief on behalf of the Massachusetts Municipal Association, the Massachusetts Chiefs of Police Association and the states City Solicitors and Town Counsel Association. The FLSA requires employers to pay their employees overtime if they work more than 40 hours in a seven-day work period. The public safety exemption, however, allows a town to pick a work period of between seven and 28 days and pay its officers less overtime in that period than a regular employer. For example, municipalities do not have to pay police officers for overtime until theyve worked 171 hours in a 28-day period. That equates to about 43 hours every seven days.

if plaintiffs reading of the letter were accurate, the letters inconsistency with the

Even

Wednesdays ruling could set up a unique legal conflict in Massachusetts, Foskett said. Last year, the states high court ruled that under state law, a municipality needs to collectively bargain the work period with unions to take advantage of the FLSA exemption. I predict that somebody is going to throw up their hands and possibly go into federal court and say, How can we be bound on this federal issue by this state court ruling? Foskett said. Ive got to believe that something like that may be percolating down the road. The two concepts seem to be at odds. The town argued that a one-sentence memo that was distributed internally in 1986 was sufficient to establish a work period, which in this case was 24 days, under the FLSA exemption. A district court judge agreed, and the plaintiffs, 110 former and current police officers, appealed to the First Circuit. Although the exemption as passed by Congress did not specifically address giving notice, the First Circuit held that the secretary of labor, which was authorized to promulgate regulations for the exemption, clearly rejected a notice requirement. The plaintiffs argued a subsequent letter ruling by an administrator at the U.S. Department of Labor mandated a notice requirement. The First Circuit, however, rejected that argument, saying the letter did not mandate a notice requirement as the plaintiffs alleged.

secretarys earlier pronouncement would render it unpersuasive, the court said. An attorney for the plaintiffs was not immediately available for comment on Monday. The town was represented by Petrini & Associates PC. The plaintiffs were represented by McDonald Lamond & Canzoneri. The municipal associations were represented by Deutsch Williams Brooks Derensis & Holland PC. The case is Calvao et al. v. Town of Framingham, case number 09-1648, in the U.S. Court of Appeals for the First Circuit.
2010.03.23 Employment Law 360 Article re Calvao (2700.07, Press)

Exhibit 10

LAWYERS Wwux
www.masslawyersweekly.com
From the May 26, 2003 Massachusetts Lawyers Weekly.

MSSACHUSETFS

Bylaw Permitting Smoking Trumped By Board Of Health


Judge Denies Motion Brought By Restaurants
By John 0. Cunningham The provisions of a town bylaw permitting smoking in specified public areas could not override a local board of healths ban on smoking, a Superior Court judge has ruled: The plaintiff, a restaurant association, argued that elected officials at the Framingham Town Meeting had the power and made the choice to preempt health regulations by voting not to rescind the bylaw after enactment of the regulations.
-

But Judge Bonnie 1-I. MacLeod disagreed, lifting a temporary restraining order that prevented enforcement of the regulations and denying a request for preliminary injunction. It is clear that the regulations in question are well within the authority granted by the Board of Health byG.L. 111, Sect 31, wrote MacLeoct. The judge added that the boards regulations have a strong presumption of validity [and] a court may invalidate [a] regulation only when there is no rational relation between the regulatIon and its stated ~public health purposeY The five-page decision is Framingliam Restaurant Association, Inc. v. Town ofFramingham, et aL, Lawyers Weekly No. 12-118-03. Subscribers to Lawyers Weekly who have registered for our Intemet Archives can find the full text of the ruling on our website, www.mass1~iyersweekly.com. Not Just Smoking Christopher J. Petrini of Boston, counsel for The defendant town, said that it would be a mistake to view this decision as limited to smoking issues. He said the opinion showed that a health regulation supercedes a town bylaw even if the Town Meeting members are e[ected arid the local board of health is not Petrini pointed out that a variety of health-related regulations could conflict with local ordinances or bylaws, and suggested that lawyers have to look at the enabling statutes at Issue to see what wins out in each situation. 1

Michael R. Bemardo of Boston1 co-counsel for the defendant, said that the ruling suggests that as long as the board is creating regulations within the sphere of authority granted directly by the Legislature, its regulations trump city ordinances and bylaws that are Inconsistent. Robert N. Melizer of Eramingharn, counsel for the plaintiff restaurant association, said the case presented serious questions about municipal law. He contended that ~ppointed boards should not have the power to make decisions based on their own agendas while elected Town Meeting members cannot determine the reasonable limits of regulation on smoking. Meter acknowledged that the Board of Health had the power to make reasonable regulations on smoking, but argued thatthe regulations in question were not tailored to meet health needs only. I-Ia also pointed out that local restaurants spent lots of money to comply with existing restrictions on smoking by puffing up enclosures and filters. Putting people out of business is not reasonable, argued Mater, who suggested that many restaurants and bars would suffer adverse effects from the ruling.
Conflict Of Authority in 1999, the Framingham Town Meeting adopted a town bylaw, which prohibited smoking in restaurants but permitted smoking in bars and segregated restaurant bars as of Jan. 2, 2000.

During 1999, restaurants and bars that were members of the plaintiffs trade association made many improvements to their premises in order to comply with the bylaw. On Jan. 23, 2002, the Framingham Board of Health adopted regulations regarding the sale and use of tobacco, which essentially provided that the town would go smoke free by prohibiting smoking In public places as of March 1, 2003. In March 2002, the board requested that the town vote to repeal the smoking bylaw as of the pros peotive date of the boards regulations banning smoking in public places. The Town Meeting voted against the article and the subject bylaw remained in effect On Jan. 22, 2003, the board voted to delay implementation of the regulations until May 5, the day the City of Boston would implement a similar smoking ban in its workplaces and public spaces. On April 30, the plaintiff obtained a temporary restraining order and filed an action seeking to enjoin the implementation of the regulations on the grounds that the towns smoking bylaw preempted its health regulations. No Injunction After a full hearing, MacLeod found that there was little likelihood that the plaintiff would succeed on the merits md determined that the public Interest outweighed any doubtful evidence of irreparable harm from denial of an iniunction.

The judge noted that the Supreme Judicial Court has recognized the ill effects of tobacco use [as] a legitimate municipal health concern. She said that no one could seriously argue against the existence of a rational relationship between the regulation of smoking in restaurants and bars and the protection of the pubftc from exposure ban established human carcinogen. MacLead added that in light of the direct authority granted to local boards of health to enact reasonable health regulations, the town smoking bylaw, to the extent it is inconsistent with these regulations, is invalid, [under] the provisions of the Home Rule Amendment.~
...

She ibund no basis for irreparable harm either, citing one SJC decision that looked to statistical studies that demonstrate no support for the notion that restaurant smoking restrictions result in a reduction of revenues. The judge also said that the Associations claim that its members will lose the value of the improvements they made in order to comply with the prior smoking regulations is likewise speculative. MacLead concluded that the plaintrlls claim of harm clearly does not outweigh the more certain harm to members of the public, customers and employees alike. QuesUons or comments may be directed to the iwfter etiounninqham(~lawversweekly.com.

(~)

2003 Lawyers Weekly Inc., All Rights Reserved.

Exhibit 11

Massachusetts Lawyers Weekly July 23, 2007 p. 1

.uinentsa~beingwithhcId..~derthe.atorney-.

fundamentallymakes-no-sense~

Sict attrny-d int privilegEprotects DCAM


Continued from page 1 cnstrzktion co.,Inc. vDivis on ofCapitalAs setMlinagtnent, LawyersWeelclyNo. 10-126(17. The full text ofthe ruling can be found. on our website, wwwmasslawyersweeldy.com. Need forcomplete and .cand klinfo Attorney General MarthaCoakley, whose office argued onbehalfofoCAM,saidshewai pleased with the result, Tharlicularly with the courts clear statenietthat legal advicesought and eceivedb~public o$ik s is, in fact,prd~ tected bythe attorney-clientprivilegC. Coaldey added that lawyer can nlyfun lion when she receives compl&te and candid information from her client, arid this isno less - true -when the client happens to be.a state Payment brouhaha agency or a niunkipality. ,In 200 1DCAM designaiedplaiAtiffstifflk Plaintiffs cqunsel Christopher W. Morog of CotistrdctionCo.,thcndajbintventuie part Boston said his client was pleased-that the SJC ner, as general co~tract9f. for the histbtic had clarified the extent of the privilege hire r~st&ation ofthe Old Suffolk County Cur lation to. public-redordi Eequests. :thouse;nowkndwii asthe John Adams Coin A.~ Morog ekplained~his clients disputebs thouse, in Boston. always been with the way in which-tl~eagency During the course ofthe project as changes in this instance has included too mueh mate to conitructipn plans andschdulerarose, the rial for protection underthe claim of attornejr- plaintiff submitted to OCAM a number o~ client privilege, when in fact significant potproposed change orders: which, ifacce~ted lions ofthe material, in ourview, are not subject in full, would have lignificantly increased. to that pri4ilege$ pCA~~ayments to theplaintiff In factsaidMorog,his clientofferdatmul Tn April 2004, after reviewing the proposals .tiple points iii the case to i~emove the question with its architects and consultant~,DCAMde-, of the yalidity of the attorney-client priyilge, nied the requested payments.but was rebuffed. The plaintiff later served two requests un We intend now to request a full review of dei the pblic records law, CIL.c. 66,fl0(a). those docu.thents which, in our view, are. not subject to a claim of privilege and are glad the Among other things, the plaintiff aske I to owt has provided all parties with the nede-: -inspect and review all documents of every kind related to the project, inchidingall do sary guid~nce to carry out that taslc7he said. Christopher J. Petrini ofFraniinghthz v,kho uments between and among[the executive co-wrote an amicus curiae brief on behalf of office foradministration arid finance] and/or the City Solicitors and Town C~nnselAssod~ DCAM, their counsel, agents, entployees, alien, said the decision should giveconsider~ consultants and/or counsel for other entities able solade to- attorne~~ charged *ith-repre-. regardmg this request senting municipalities and public agencies that Over the next U thdhtl*,DCAMpioduCed the advice we give our client will not be-sub a large volume of material to the;pla4ntiff,but jectto disclosure pursuant to public-records createdan evolvinglog that identified 189 doc

era! Sec misplaced.


- --

-[T]h~eis no merit in [the plaintiffs] prem ise thatfor purpoes of,cqnstring-the public
-

:1

ii

--

-.

client privilEe. The plaittiffev Superior Court se~j and review of thei E~cognizingtl*i torney-dilent p sphere ha4 never t courts,Judge Mit -questiyn to the S.
---

records law, the attorney-client -privilege and -the work-product doctiinearevirwallyindis tinguishable saictMarshall The two doc times are readily differentiated The chief justice noted that the attorney dienfliitilege has. deep rootwih the com mon im~ and is flnnly established.i a cr16cal.-cbmponcnt of the rule -of l~*. in our democratic society wlnlethe work product doctrine is merely a tool ofjudicial adnun istration with no intrinsic value outside the litigation arena The chstmetly difkrent social value as-

acorn lar elin1~ ec


..~,,

Public privUge~.

,ecni~.ctc

appeal, the~ torney-dient r :,public entitien4. Finally the court rejected the plaintiffs usThe nec,essityi sertion that allowing the $torne~-dlientjii~J mental entities ai.. from the realities of-modern governnient ilege tcrtrump the public iecords statute wduld said Marshall. both contravenetheiegislaturespolicyfavor. ~Public eiployees ritust routinely seek ad ing open government and encourage pqblic vice from counsel o how to meet their obli -officials to misuse the privilege; gations to the public: she added.It isin the Attorneys andjizdges are free, aS always, to publici interest -that.theybe able to do. so in test the sufficiency ofthedaim-ofprivilegesaid-circumstances that encourage complete can Marshall, adding that[i]n an era In Which pub 4or, without inhibitions arising from the feat licentities are regularly subject to liuigatiOn and that what they communkate willbe.disdosed discoverybypiivatepaties,respondingtodoc-to the world, --.,~ ument requests anddifferentiatingwn6figdisNext addressing the plaintiffs argument coverable and undiscoverable material are rou that the ~ubliC records statute nonthelss tine j~arts of doing buiihes~ abrogates the attorney-client privilege f&. public entities subject to thatstatute,thechief Eric TBerkmaftfornir!ya-reporterforMass justice fOund the plaintiffs reliaiice,on Gei- achwesLuyersWeekl,~ afreelance writerQ
- -. ... - -.

signed to the two doctnninsa reflected mihe fact that the attorney client privilege, which belongs to the client is with rare.z&pbons in violable, survivingeyen the clints death said Marshall AttorneyWork pzod~ict,ainnunu- e mty for the attorney on the other hand, is dis coverable on a showing of need. ,liecause the withdrawal of the aftcrnet ~tpnvilege wouldbeextraordinarym any mstance the court declined to employ the conventions ofstatutory construction ma :;..11a echanistic way. that upends the-coxn~jiOjj law
-

c~
F-~ (J2.

~< tn( M O~

1~~) 0 Ort Orf

-1 (a CD CD

Exhibit 12

SJC gives municipalities discretion in bid process The Boston Globe 1 of 2


-

bostoneCOn

THIS STORY HAS BEEN FORMATTED FOR EASY PRINTiNG

SJC ruling gives municipalities discretion in bidding process


By John Ellement and Christine Legere, Globe Staff I Globe Correspondent

July 10, 2010

The states high court said yesterday that local governments can hire companies for public works projects even if the firms misrepresented their track records, provided there is no sign of corruption in the bidding process. The unanimous ruling by the Supreme Judicial Court clears the way for the town of Hanover to finish its $50 million new high school. Supporters of the decision said it will help taxpayers save millions of dollars in years to come. The decision gives discretion to procurement officers at the local level to really go for the lowest reliable and qualified bidder, said Christopher Petrini, aFramingham attomey who represented municipal lawyers before the SJC. The [Hanover] taxpayers got a project for $1 million less. But critics in the construction industry said the ruling undermines the spirit of the open, honest public bidding process created by the Ward Commission after bid-rigging scandals in the 1970s. 1 think the likely result will be a compromising of the integrity of the competitive process, said Donald J. Siegel, a Boston attorney who represented the Foundation for Fair Contracting before the SJC. Attorney General Martha Coakley, whose office tried to halt the Hanover project after misrepresentations were discovered in the winning bidders paperwork, said accuracy is crucial. We believe all contractors who bid on public construction projects should accurately and fully describe their qualifications. she said in a statement We respect the courts decision and will also continue our efforts to ensure an open and fair bidding process for projects in Massachusetts. At issue was the decision by Hanover officials to hire Callahan Inc., a Bridgewater-based firm, for the high school project even though it was discovered that the firm had provided fraudulent information to qualify for bidding. The company took credit for a North Andover high school building project even though another corporation held the lead role, according to the court. Losing bidders said Callahan should be disqualified from bidding for violating ethical rules. Coakley recommended that Hanover end its contract with Callahan and accept the next qualified bidder. Town officials refused, saying they took Callahans misdeeds into account. Were pretty happy that the outcome shows we followed the process, Chris Martin, chairman of the High School Building Committee, said yesterday. Writing for the court, Justice Ralph W. Gants said Hanovers actions were reasonable and not the result of official corruption or fraud. The SJC threw out an injunction issued by a lower court judge. We conclude that where, as here, there is no allegation that any member of the towns prequalification committee acted corruptly in deciding to prequalify Callahan, there is unrefuted evidence that the committee did not act in reliance on any of the alleged misrepresentations, and the town wishes to proceed with the contract the injunction must be dismissed. Martin said that other than a five-week hiatus last November when the injunction stopped construction, the project has been moving along. The injunction was lifted by an Appeals Court judge in December. The SJC took up the case after 10 taxpayers from Hanover, most of them members of the carpenters union, sought to have the injunction reinstated. Yesterday, Martin said the project was on time and on budget. The school is expected to open in fall 2011. The state School Building Authority provides monthly reimbursements for 48 percent of project cost. To date, the state has pitched in about $7 million of the $15 million spent so fan 5/2010

SJC gives municipalities discretion in bid process The Boston Globe2 of 2


-

Dennis Sheehan, vice president of Callahan Inc., said company officials are relieved. Were certainly very pleased, he said, adding there was no intent to mislead anybody. Union member Kirt Fordyce, who was one of the town residents who sued Hanover, said he was reviewing the SJC decision.
John Ellement can be reached at eI1ementc~plobe.com. ~
coovriciht 2010 The New York Times company

http:/fwww.boston.com/yoUrtoWflffamingham/~~~/2Ol 0/07/1 0/sjcgives_municipalities_discretion_i11PitPr0S5?m0~F9~~5/2OIO

You might also like