Petrini & Associates Proposal

PETRINI ~3 ASSOCIATES, P.C.1 1 Counselors at Public Law

372 Union Avenue I Framingham, MA 01702ChristopherJ. Petrini (Tel) 508-665-4310 I (Fax) 508-665-4313 Peter L. [email protected] www.petrinilaw.com [email protected]

Barbara J. Saint Andre Heather C. [email protected] [email protected]

Christopher L. [email protected]

RESPONSE TO REQUEST FOR PROPOSALSFOR DUXBURY TOWN COUNSEL

Name: Barbara J. Saint André (BBO# 438030);Christopher J. Petrini (BBO# 556848)

Firm Name: Petrini & Associates, P.C.

Address: 372 Union AvenueFramingham, MA 01702

Telephone: (508) 665-4310

Fax No.: (508) 665-4313

Email: [email protected]; [email protected]

Date: October 11,2012

1. Please identify by name (and BBO #, address and phone number if different thanabove) the proposed Town Counsel and each proposed back-up counsel.

1. Barbara J. Saint André (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 admissionrequirements of the RFP? If other than “yes,” please explain.

Yes.

4. With respect to each attorney identified, please list each and every Massachusettsmunicipality represented by the attorney within the past ten years, the years of suchrepresentation, and the name, address and phone number of at least one contact person ineach municipality with knowledge of the attorney’s representation.

See Exhibit 2.

5. Please describe each identified attorney’s experience in municipal law.

Barbara J. Saint André: Ms. Saint André has extensive experience in all areas ofmunicipal law, including Town Meeting, finance, open meeting law, conflict of interest,licensing, taxes, chapter lands, real estate, Community Preservation Act, housing, elections, andlitigation. 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 ofland use law. She has successfully handled cases in all levels of the court system, as well asbefore administrative bodies such as the Department of Environmental Protection and theHousing Appeals Committee. The types of cases that Attorney Saint André has personallylitigated 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 André has been actively involved in advising townofficials and boards during the hearing process, and helping to draft decisions. Appropriateadvice and guidance during the public hearing process, and careful drafting of decisions by localboards, can avoid numerous problems down the road. She has also reviewed and helped draftzoning and general by-laws for all towns she has represented.

In the area of subdivision control, including ANR plans, she has provided advice andwritten opinions to the various towns she has represented. She has also successfully defendedappeals brought from subdivision decisions as well as denials of ANR plans. She has workedwith many planning boards to enforce the provisions of the Subdivision Control Law, includingthe seizure of surety for defaulting subdivisions. Among the topics on which she has advisedplanning boards are modification and rescission of subdivision approval; procedures, public

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hearings and open meeting law; enforcement; ensuring adequate subdivision security; waivers;constructive approval; subdivision and ANR freeze provisions; scope of review and conditionsfor subdivisions; definition of subdivision and authority to withhold ANR endorsement; andvalidity of subdivision regulations, among other topics.

Ms. Saint André has represented a number of coastal towns and is familiar with many ofthe issues unique to coastal areas. While a principal at Kopelman and Paige, she was the primaryattorney for the towns of Scituate, Harwich, and Manchester-by-the-Sea for many years. She alsoprovided 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 theunique aspects of the Cape. She has worked with the Cape Cod Commission and Coastal ZoneManagement, and has handled matters involving public landings, town marinas, mooringpermits, shellfish permits, harbormasters, town piers, beach rights, local by-laws, and permittingof structures along the coast.

Attorney Saint André has brought numerous actions to successfully enforce town bylaws, both zoning and general by-laws, in the Superior Court. She has also worked with HistoricCommissions, including a recent case in which she successfully defended a decision of theBraintree Historic District Commission which was appealed to the Metropolitan Area PlanningCommission.

Attorney Saint André has worked on behalf of municipalities for over 20 years in the areaof comprehensive permits, advising local boards of appeals during the permitting process andhelping to negotiate with developers. Among the many towns she has represented in this areaare Framingham, Stoughton, Braintree, Harwich, Scituate, Hanson, Dennis, Walpole, Marlboro,Waltham, Norton, Acushnet and Dedham. When unable to reach a satisfactory conclusion, shehas defended boards of appeal before the Housing Appeals Committee. She has accomplishedthe rare feat of obtaining two victories before the Housing Appeals Committee, each HACdecision upholding the denial of a comprehensive permit. One of these favorable decisions wasfor the town of Dennis, and one for the town of Braintree.

Ms. Saint André is past Chair of the Massachusetts Bar Association’s Public Law SectionCouncil. She has served as a speaker on both land use and general municipal topics at forumssponsored by Massachusetts Continuing Legal Education, Massachusetts Bar Association, CitySolicitor and Town Counsel Association, Massachusetts Health Officers Association,Massachusetts Association of Planning Directors, Massachusetts Chapter of The NationalAssociation of Housing & Redevelopment Officials, American Planners Association SouthernNew England Chapter and regional planiñng agencies. She has taught a number of land usecourses for the Massachusetts Citizen Planner Training Collaborative on zoning, comprehensivepermits, and subdivision issues. She was an elected Town Meeting Member in Braintree for 20years, a member of the Housing Authority for nine years, and served on other town committees,including the Finance Committee. She currently serves on her town’s Finance Committee.

Attorney Saint André has extensive experience working with water and solid waste issuesin the various towns that she has represented. She is thoroughly familiar with the use of

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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 issuesrelated to updating water regulations, enacting by-laws, and negotiating with the DEP as toadministrative consent orders on both water and sewer issues.

Ms. Saint André worked extensively in the field of public labor law while employed atMurphy, Lamere, and Murphy. During that time, she represented cities, towns, schoolcommittees and other public sector clients in collective bargaining negotiations, grievances andarbitrations, Civil Service matters including appeals, strike petitions, issues related to unfairlabor practice charges and unit composition, litigation, and general employment matters. Whileat Kopelman and Paige, she continued to represent clients on employment matters includingemployee 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, andbenefits. She currently provides advice to municipal clients on general labor and employmentmatters.

Among some of the more recent projects Attorney Saint André has worked on are:

(1) Braintree — Greenbush Commuter Rail Line Restoration: Worked with the Town’sBoard of Selectmen and the Greenbush Mitigation Committee to negotiate and draft a highlyadvantageous mitigation agreement with the MBTA relative to the restoration of the Greenbushcommuter rail line through the town. Among other things, the MBTA agreed to depress the railline as it passes under major roadways in the town near Weymouth Landing, agreed to restoreSmelt Brook, and agreed to a number of traffic mitigation measures, including roadimprovements and traffic signals.

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

(3) Braintree — OIB, Inc. v. Braintree ZBA — Successfully defended the Board ofAppeals 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 toa proposed development of 118 houses created a safety concern that outweighed the need foraffordable housing. This is one of the few cases in which the HAC has upheld the denial of acomprehensive permit by a board of appeals.

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

(5) Hardwick — Hardwick Landfill, Inc. v. Zoning Board of Appeals — In this zoningmatter, attorney Saint André successfully defended the determination of the Hardwick BuildingCommissioner, upheld by the Board of Appeals, that the Hardwick landfill had illegallyexpanded 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 Appealsdecisions on multiple appeals and applications filed by Hardwick Landfill, Inc. The cases wereall successfully resolved in favor of the Town’s position.

Christopher J. Petrini: Mr. Petrini has served as Town Counsel to the Town ofFramingham since 2001, and is responsible for handling and overseeing virtually all ofFramingham’ s legal affairs. Mr. Petrini also has provided municipal law legal services andhandled 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 CounselAssociation and serves on its Executive Committee. Mr. Petrini was one of 11 attorneysrecognized as a New England Super Lawyer in 2009 and 2010 in the municipal field. Mr. Petrinialso recently was selected as Co-Chair of the Massachusetts Bar Association Construction LawCommittee.

Mr. Petrini has extensive firsthand experience with the operations of local governmentand the unique challenges faced by local elected officials, having served as a Selectman for theTown of Framingham from 1996 to 2001 (board chairman 1998-99) and as a member of theFramingham School Committee from 1991 to 1996 (board chairman 1993-95).

Mr. Petrini has substantial experience in addressing public construction, labor, generalmunicipal and municipal litigation issues. Attached as Exhibit 3 is a copy of the firm’s brochureon our extensive Public Construction Practice Group, headed by Mr. Petrini. We haverepresented over 30 cities and towns on public construction projects and are recognized as astatewide expert on the subject. We are routinely asked to present and author publicationsregarding public construction. Last month we presented the Public Construction Law Update forthe 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 andfederal) and state administrative agencies and has a demonstrated record of success in majormunicipal litigation and negotiations. His success in these matters has generated considerableattention in and outside of the Massachusetts legal community. Attached as Exhibit 5 a list of

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13 front page Massachusetts Lawyers Weekly articles since 2003 in which Mr. Petrini’s caseswere highlighted, or in which Mr. Petrini was quoted as a legal expert. Examples of some of hishigh profile favorable outcomes include the following:

(1) Town of Framingham v. Town of Ashland: In this case, the Department ofTelecommunications and Energy found in favor of the Town of Framingham in modifying thesewage transport rate paid by the Town of Ashland to Framingham under an IntermunicipalAgreement. 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 MassachusettsLawyers Weekly March 1, 2004, Page 1 article entitled “Towns Must Split Costs for SewageExpenses,” attached as Exhibit 6.

(2) Pelham Apartments v. Town of Framingham: In this case the Superior Courtfound in favor of the Town’s motion for summary judgment which substantiated the Town’sdecision to discontinue trash removal services to an apartment complex consisting of nearly 550units. This favorable determination by the Court has saved the Town at least $100,000 in trashcollection costs annually since 2003. The Town also obtained a judgment on its counterclaimagainst the apartment complex which resulted in a $300,000 settlement paid to the Town in FY2008. See Massachusetts Lawyers Weekly July 21, 2003, Page 1 article entitled “Town NotRequired to Supply Public Services to Developer,” attached as Exhibit 7.

(3) Calvao v. Framingham Police Officers FLSA Litigation: Mr. Petrini recentlysecured a significant Federal Court victory on a motion for summary judgment in a case broughtby approximately 100 Framingham Police Officers against the Town of Framingham. The actionseeks in excess of $1.5 million dollars in damages for alleged violations of the overtimeprovisions of the Fair Labor Standards Act. Although the officers based their claims upon theassumption that the Town was required to pay them at the overtime rate for hours worked inexcess of 40 hours per week, the Town’s motion for summary judgment successfully establishedthat the Town was required to pay the officers overtime sums only for hours worked in excess of147 over 24 days, in accordance with Section 207(k) of the FLSA. Judge O’Toole’s decisionrepresents a significant victory for the Town in this litigation, and likely reduces any potentialliability on the part of the Town by several hundred thousands of dollars, if not entirely. SeeMassachusetts Lawyers Weekly, September 1, 2008, Page 1 Article entitled “Police OT can becut,” attached as Exhibit 8. On appeal, the U.S. Court of Appeals for the First Circuit affirmedthe District Court’s 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 theMassachusetts Lawyers Weekly March 29, 2010 edition, as well as in the May, 2010 Edition ofthe Fair Labor Standards Handbook for States, Local Governments and Schools. Attached asExhibit 9 is a representative sampling of the press that this decision received. Following suchcoverage the Fair Labor Standards Handbook asked Mr. Petrini to serve as its “FLSA LegalInsider” 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?”

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In addition to work on these matters, which have brought significant financial benefits tothe Town, Mr. Petrini has handled several other noteworthy cases that have allowed the Town toimplement significant policy changes in the face of organized opposition. For instance, heobtained an order dissolving a temporary restraining order preventing the implementation of atown wide smoking ban enacted locally and denying the Framingham Restaurant Association’smotion 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 PermittingSmoking Trumped by Board of Health,” attached as Exhibit 10.

Mr. Petrini has represented Framingham in several cases brought before theMassachusetts Commission Against Discrimination, including claims of discrimination andwrongful discharge, assertions of sexual harassment and the creation of a hostile workenvironment, and claims of handicap discrimination. He has provided advice or representedFramingham on a variety of labor relations issues, including G.L. c. 41, § 1 hF claims, appealsof suspension, and the Fair Labor Standards Act (“FLSA”).

Mr. Petrini also was recognized for an amicus curae brief he co-authored in the SupremeJudicial Court in the case of Suffolk Construction Co., Inc. v. Division of Capital AssetManagement, 449 Mass. 444 (2007). This case involved an attempt by a contractor to obtaindocuments through public records requests that would have been regarded as attorney-clientprivileged material with respect to non-governmental parties. In his brief, Mr. Petrini advocatedthat governmental parties bodies are entitled to the attorney-client privilege like any otherindividual or governmental body. The Supreme Judicial Court adopted this argument, andaffirmed that documents shared between a government party such as a municipality and itsattorney were entitled to the protections of the attorney-client privilege. This case has beenwidely hailed as a landmark victory for Massachusetts municipalities. ~ç MassachusettsLawyers Weekly, July 23, 2007, Page 1 Article entitled “Attorney-client privilege protectsDCAM 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 andPeter Mello co-authored an amicus brief on behalf of the City Solicitors and Town CounselAssociation. In Fordyce, the SJC affirmed the right of municipal officials to select the lowesteligible and responsible bidder in a case where a bidder included misstatements or omissions inits bid qualification submission, so long as the municipality did not detrimentally rely on thecontractor’s misstatement or omission. Following the SJC’s issuance of the decision, Mr. Petriniwas quoted in a July 10, 2010 Boston Globe regarding the decision. A copy of the Boston Globearticle is attached as Exhibit 12.

Peter L. Mello: Mr. Mello also has extensive experience in various areas of municipallaw, 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 practicedcivil litigation involving a full range of zoning and land use issues, including actions to enforceprovisions of zoning bylaws, defending zoning board of appeals decisions on applications forspecial permits, variances, and comprehensive permits, defending decisions of conservation

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commissions in certiorari actions, defending planning board site plan review and subdivisiondecisions, and defending municipalities in litigation challenging a municipality’s eminentdomain 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 publicconstruction matters and labor law, among others. Mr. Mello’ s litigation experience hasencompassed all phases of litigation in the state and federal courts, including preparation ofdiscovery, preparation and argument on dispositive motions, trial, and attendance at executivesession meetings to advise client municipal boards.

Throughout his career Mr. Mello has also worked in several transactional matters and hasdrafted a number of opinions advising town boards and municipal clients on a variety ofmunicipal 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 Associationand serves on the editorial committee of the City Solicitors and Town Counsel Association’squarterly Newsletter. He is also a regular contributor to the Newsletter.

Heather C. White: Ms. White practices general municipal law, including land use andzoning, municipal real estate transactions, bylaw enforcement, conservation, open meeting law,and public records. Prior to joining Petrini & Associates, Ms. White was an associate withBrackett & Lucas specializing in municipal law for several years and served as lead counsel toseveral towns and districts during her time there, including Princeton, Berlin, and LeicesterWater Supply District. She has extensive experience in land use litigation, including zoningenforcement and public procurement, and has authored appellate briefs and argued before theMassachusetts Appeals Court on numerous occasions.

Ms. White has completed two Inspector General’s Massachusetts Certified PublicPurchasing Official (“MCPPO”) courses, including the Public Contracting Overview and Designand Construction Contracting. She frequently advises clients on bidding and contracting issuespursuant to G.L. c. 30, 30B, and 149. Currently she is working on developing updated templatesfor 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 amember of the Association’s Executive Committee. She has served on the Public Law SectionCouncil of the Massachusetts Bar Association. She has been a speaker on municipal law topicsfor various educational programs sponsored by Massachusetts Continuing Legal Education andthe City Solicitors and Town Counsel Association and is the co-author of the article RecentDecisions under the Comprehensive Permit Law, Section Review (Mass. B. Ass’n, Boston,M.A.)Vol. lONo. 12008.

Christopher L. Brown: Mr. Brown joined Petrini & Associates, P.C. in 2010 andfocuses his practice on general civil litigation, municipal law, and employment law. Prior to

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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. Brown’slitigation experience includes public construction, eminent domain, insurance defense, personalinjury, motor vehicle torts, environmental matters, bad faith insurance claims, and generalbusiness disputes.

Attorney Brown has represented management-side clients in grievance arbitration andadvised 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, AttorneyBrown has also advised both public and private employers with regard to employment issuesincluding 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 inthe United States Army, deploying to Germany and Kosovo while on active duty. Mr. Brown isa member of the Massachusetts City Solicitors & Town Counsel Association and theMassachusetts Bar Association.

Mr. Brown was named in 2009 and 2010 New England Super Lawyers — Rising StarsEdition. Only 2.5% of lawyers with less than 10 years of practice or who are under 40 years oldwere selected.

6. Please describe how you propose to satisfy the Accessibility requirements of theRFP.

As principal attorney, Attorney Saint André will promptly respond to telephone calls andemails from authorized officials, which in no event will be later than 24 hours. If she isunavailable, one of the other attorneys will act as back-up. All requests for written opinions willbe provided within one week unless the circumstances of the opinion warrant a shorter or longertime frame for a response. Counsel will be available to be present at meetings or hearings of theBoard of Selectmen or other boards, committees or officials when approved. All matters referredto the firm for prosecution will be promptly addressed.

Attorney Saint André will personally provide or personally supervise the provision of alllegal services necessary for the proper and efficient conduct of the Town’s affairs. Namely, shewill personally keep the Board of Selectmen and Town Manager fully apprised of the status ofall 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 oursubstantial expertise, resources and repository of attorney work product. To that end, each of thefirm’s attorneys would be available to advise and represent the Town in matters pertaining to therespective attorney’s expertise. For purposes of organizing communication with the Town,Attorney Saint André would be the primary contact for the Town. Although in this capacity she

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would personally be available to attend to all telephone calls from the Town, and to initiallyprocess 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-upcounsel 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 andSpecial Town Meetings and an occasional Board of Selectmen’s Meeting on Mondayevenings?

As we do with each of our clients, we would plan to attend all Annual and Special TownMeetings, as well as any Board of Selectmen meeting that we are asked to attend. Our attorney-to-client ratio allows us to integrate new clients comfortably, while maintaining our emphasis onresponsive and personalized service. If Attorney Saint André is unavailable to attend a meetingin the rare instance of an emergency or scheduling conflict, Attorney Petrini or one of the otherattorneys would be available to attend.

9. Would you be available to review and approve as to form and content allcontracts to which the Town is a party?

Yes.

10. How would you conduct or oversee all litigation, including administrativeproceedings, in which the Town and its boards are involved in their official capacity, to theextent such legal services are not provided by the Town’s insurance carriers?

We would conduct or oversee all litigation (except tax title litigation, which we do nothandle) and administrative proceedings in a proactive, zealous and cost effective manner.Although each case requires an individualized strategy, our general approach is to be asproactive and thorough as possible in discovery and other litigation events. We find that anaggressive style often is the most effective way to seize control of a dispute and steer a case inour client’s favor. As is reflected in our above responses, our attorneys have extensiveexperience in all types of municipal litigation, and we have enjoyed tremendous success for ourclients over the years. Our litigators’ experience and expertise allows us to assign cases tolawyers who can comfortably and reliably handle cases on their own. As a result we can managelitigation costs more easily than our competitors by minimizing the number of lawyers workingon 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, andrequirements for calling Executive Sessions for example?

P&A Attorneys have conducted trainings and seminars in many of the towns they haverepresented over the years, and found that they can be very helpful in educating town officialsand thereby avoiding potential future legal issues. We will offer to provide the following fourseminars (which can he adjusted in accordance with the Town’s preferences):

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• 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 theday, primarily for staff. In addition, we would have transitional meetings with the TownManager and other staff, including a review of key points that we look for in contract review, atno additional cost to the Town. We also send periodic updates to our municipal clients on newdevelopments in municipal law.

12. Please identify any past or current clients that may give occasion to a conflictof interest to arise as a result of representing the Town of Duxbury.

We do not represent any municipalities that abut Duxbury and perceive no likelyconflicts. If a conflict arose we would refrain from participating in the matter unless both clientsconsented in accordance with applicable provisions of the Massachusetts Rules of ProfessionalConduct.

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II. FEES AND EXPENSES RESPONSE SHEET

1. Please list the name and hourly rate for proposed Town Counsel and for eachattorney intended or likely to serve as back-up.

As described below, Petrini & Associates proposes to provide Basic Town CounselServices under a retainer arrangement. Hourly rates for work on matters outside of the retainerare as set forth below. Please note that we will not charge the Town for travel time to and fromTown Hall, unless the travel occurs during normal working hours, which will provide a savingsin costs to the Town. Town Counsel services will be billed on an hourly basis as follows:

1. BarbaraJ. Saint André: $190.002. Christopher J. Petrini $210.003. Peter L. Mello: $175.004. Heather C. White: $175.005. Christopher L. Brown: $175.00

In addition to the discounted rates set forth herein, we also will provide courtesydiscounts and write off time for litigation matters if warranted. Also, please note that we do notbill the town for any transition time. This means that, if there is a pending litigation or othermatter, we will review the file and “get up to speed” at no cost to the Town. Transitionalmeetings, such as with former town counsel and/or town officials if needed, are also at nocharge.

P&A attorneys have developed a strong track record of staying within budgets anddelivering quality legal services in an equally or more efficient manner than other firms withlower published hourly rates. This is because P&A attorneys are experienced and take the timeto get to know the specific needs of their clients, unlike other firms who may have lower hourlyrates but assign work to junior associates who end up taking more time to complete the task thanP&A attorneys would, thus costing towns more in the end. Moreover, P&A’s billing policiescontain a number of “client friendly” provisions that further reduce the overall costs of legalservices, such as not charging for travel time during non-business hours, not charging fortransition work, offering free seminars, etc. Moreover, the fixed fee retainer proposal of $50,000for Basic Town Counsel Services will assuredly result in discounts for Duxbury that will havethe effect of significantly reducing P&A’ s actual hourly rate. $c~ Section, H.6 below.

In accordance with Duxbury’s billing requirements, a monthly statement for legalservices will be provided to the Town. The statement will disclose the date of the service, theidentity of the lawyer or staff person performing the service, the subject matter reference for theservice, a description of the service performed, the time it took to perform that function, and thehourly rate for the individual performing the function. Expense items also will be itemized forreimbursement for the actual cost to the firm. No mark-up will be charged to the Town forexpenses.

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2. If you propose to bill for services provided by paralegals, clerical staff, or othernon-attorney personnel, please list by title and by hourly rate each position for which youmay bill.

1. Clerical Staff: NO CHARGE2. Paralegals: $75.00

3. Please provide a complete listing of all charges for out-of-pocket expenses youintend 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, servicefees and the like).

Copy Charge 200 per PageTelephone Charge NO CHARGEFax Charge NO CHARGEMileage IRS RateTolls and Parking Actual CostPostage Actual Cost

All other out of pocket expenses, such as court fees, will be billed at cost with no mark-up. Wealso make extensive use of electronic mail in order to save postage and copying charges to theTown.

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 someother 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 traveltime to and from points other than Town Hall, attorney time will be billed on a portal-to-portalbasis, 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 (“basicservices”) to Duxbury for a yearly fixed fee lump sum retainer of $50,000, plus out of pocketexpenses at cost, with litigation, real estate transactions, comprehensive permits, labor, andconstruction and building committee excluded from basic services. Basic services include thefollowing (if not related to an excluded matter): providing written opinions as requested by thetown through the Town Manager; review of town meeting warrants and drafting articles andmotions; preparation for and attendance at Town Meetings, meetings of the Board of Selectmen

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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, andconsultation with Town Officials; and related basic services. The firm does not perform tax titleservices 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 reservethe option to adjust the fixed fee and hourly rates in future years, to be mutually agreed uponwith the Town.

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CERTIFICATION

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

Signed: Date: Oci- ~

2012 10.05 Duxbury Response (2700-06)

Attachment AMunicipal Law Experience Checklist

Rate your experience in the following areas ofmunicipal law using the scale below

1. No experience2. Limited experience3. Moderate experience4. 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, 74,765 Community Preservation Act (IL. c. 44B~ Municipal Finance

_f_ Liqi~ior Licensingj Conduct of Open To~i Meeting

$~ Subdivision Control Law~ Public Bidding and Construction Law’5 Jntemal hrvestigations within Municipality~ Land Acquisitions by Municipality~r Open Meeting Law

_~ Conflict of Juterest Law~ Wetlands Regulation (State and Local),3~ Oil & Hazardous Waste Contamination G.L. c. 21E

Attacbment B•Statement of Litigation Experience

Rate Your Experience Practicing with the following Courts, Boards and Commissions based onthe stale listed below.

1. No cip~ience2. Limited experience.3. Moderate experience4. Advanced experience5. Extensive experience

Trials before State Courts (District, Superior, Land Courts)5 Trials before Federal District CourtsS Appeals before Massachusetts Appeals Court~ Appeals before Massachusetts Supreme Judicial Court

_____ Administrative Proceedings before Massachusetts Civil Service Commission~ Arbitratio~i Proceedings~S Mediation Proceedings3 Administrative Proceedings before Massachusetts Appellate Tax Board~t Administrative Proceedings before Massachusetts Department of Environmental ProtectiontL Administrative Proceedings before the A]3CCF Administrative Proceedings before the Housing Appeals Committee3 Administrative Proceedings before Division of administrative Law Appeals

Exhibit 1

CHRISTOPHER J. PETRINIPetrini & Associates, P.C.

372 Union AvenueFramingham, MA 01702

Tel. (508) 665-4310, Fax (508) 665-4313www.petrinilaw. corn

cpetrini@petrjnjlaw. corn

I. EMPLOYMENT

A. Le2al Employment & Municipal Counsel Appointments

2004-Present PETRINI & ASSOCIATES, P.C.Framingham, MAFounding PrincipalManage a five attorney public law firm specializing in municipallaw, public construction, land use and zoning

2001-Present TOWN COUNSEL, TOWN OF FRAMINGHAMFramingham, MAHandle or supervise all litigation and legal affairs for theTown of Framingham

2007-Present TOWN COUNSEL, TOWN OF MEDWAYBarbara J. Saint André of Petrini & Associates is designatedAttorney for Town of Medway

2010-Present TOWN COUNSEL, TOWN OF WEST BROOKFIELDBarbara J. Saint André of Petrini & Associates is designatedAttorney for Town of West Brookfield

2010-Present TOWN COUNSEL, TOWN OF SHERBORNBarbara J. Saint André of Petrini & Associates is designatedAttorney for Town of Sherborn

2007-Present NASHOBA REGIONAL SCHOOL DISTRICTProvide labor and general counsel services to Nashoba RegionalSchool District in Bolton, Massachusetts

2000-Present SPECIAL COUNSEL, PUBLIC CONSTRUCTION

Barnstable (2010)Braintree (2009-2010)Falmouth (2006-2009)Franklin (2012)Framingham High School Building Committee (2002-2009)Holbrook (2006-2008)

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. Past Le~aI Employment

1993-2004 CONN, KAVANAUGH, ROSENTHAL,PEISCH & FORD, L.L.P., Boston, MABoston, MassachusettsPartner, 1998—2004Member, Management CommitteeCo-Chair, Construction Practice GroupCo-Chair, Hiring CommitteeAssociate, 1993-1997

1990-1993 H1NCKLEY, ALLEN & SNYDER, Boston, MALitigation Associate, Construction Department

1989-1990 UNITED STATES COURT OF APPEALS, EIGHTH CIRCUITLaw Clerk to Honorable Theodore McMillian, St. Louis, MODrafted opinions on criminal, employment, securities, civilrights, and statutory matters. Several opinions received nationalattention.

1987-1989 SONNENSCHEIN, NATH & ROSENTHAL, Chicago, ILLitigation Associate, Litigation and Employment

2

II. EDUCATION

Legal: DUKE UNIVERSITY SCHOOL OF LAW, Durham, N.C.Juris Doctor with High Honors, 1987Law and Contemporary Problems, Staff Editor, 1986-87Co-Chair, Forum for Legal Alternatives, 1984-86

Graduate: DUKE UNIVERSITY GRADUATE SCHOOLMaster of Arts, Philosophy, 1987 (3.8 GPA)

Undergraduate: GEORGETOWN UNIVERSITY, Washington, D.C.A.B., Cum Laude, 1983 (3.6 G.P.A.)Double Major: Philosophy & GovernmentMacNamee Ethics Award Recipient, 1983Rhodes Scholar Nominee: State Finalist, 1982

III. BAR ASSOCIATIONS

* Massachusetts Bar Association

• Co-Chair, Construction Litigation Committee, Civil LitigationSection 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” ~ AnnualMunicipal Law Conference (MCLE 2012)

* “What’s 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)

3

* “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 JaneB. Estey.)

* The Owner’s 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 Lightof Suffolk Construction Co., Inc. v. Division ofCapital Asset Management, 449Mass. 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, MassachusettsLawyers Weekly, April 24, 2006

* Local Health Boards Empowered to Promulgate and Enforce Smoking Bans inFace ofContrary Town Bylaw, Framingham Restaurant Association v. Town ofFramingham, Massachusetts Bar Association Section Review, 2003 MBA SectionReview, 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 Law:What do You do When...? (National Business Institute 2000)

* What Do you Do When the Plans and Spec~Ications are Deficient? in

Massachusetts Construction Law: What do You do When.. .? (National BusinessInstitute 2000)

4

* What Do you Do When it is Time to Sign the Contract? in Massachusetts

Construction Law: What do You do When.. .? (National Business Institute2000)

* Key Changes in Contract Benefits and RiskAllocations Effected by 1997

Revisions to AlA Forms, in Current Developments in Massachusetts ConstructionLaw (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 Construction—Common Issues Faced

by Municipal Counsel,” Massachusetts City Solicitors and Town CounselAssociation 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 ConstructionLaw Committee Seminar (December 2010)

* Co-Chair, “Annual Trial Practice Program: Bid Protests--The Law and PracticalTips for Defending a Protest,” Massachusetts City Solicitors and Town CounselAssociation Annual Meeting (October 2008)

5

* 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 Don’ts 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 Owner’s 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, 4th Annual MCLE Municipal Law

Conference (2006)

* 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 AssociationSeminar (September 2004)

6

* 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,” 9th Annual MCLE Municipal Law

Conference (2011)

* Panelist, “Update on the New Open Meeting Law,” Massachusetts Municipal

Association Annual Conference (with Britte McBride, Director of OpenGovernment, 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 andthe City of Boston SJC Impact Bargaining Cases and How They Affect YourCommunity,” City Solicitors and Town Counsel Association Monthly DinnerMeeting (May 2009)

* Chair, “Open Meetings and Public Records,” 7th Annual MCLE Municipal LawConference (2009)

* Moderator, “Ensuring that Town Hall Doors (and Files) Are Open,”


* Panelist, “Document Management in the Electronic Age,” Massachusetts

Municipal Management Association Monthly Meeting (October 2008)

7

* 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, “Survivor’s Guide to the Open Meeting and Public Records Laws,”


* 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,” 1st Annual

MCLE Municipal Law Conference (Sept. 2002)

* 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 ofNorth 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 ofCapital Asset Management, 449 Mass. 444 (2007), wherein the SJC adopted theAssociation’s position and found that the attorney-client privilege applies tocommunications 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 forMassachusetts Municipal Association for 2003 -04 Legislative Session, includingDesign-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 andTown Counsel Association, the International Municipal Lawyers Association,MCLE and other organizations. The seminars I have attended include programson 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 selectedfor this honor)

* AV Attorney Rating, Martindale-Hubbell (1999-Present). The AV Rating is thehighest possible professional rating available under Martindale-Hubbell’s PeerReview 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 AssociationJune, 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, andpro 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 ANDRÉPetrini & Associates, P.C.


(508) 665-4310bsaintandre(~petrinj1aw.com

LEGAL EXPERIENCE

Petrini & Associates, P.C., Framingham, MassachusettsPrincipal, 2006 to presentConcentrate in municipal practice with emphasis on general municipal law, land use,comprehensive permits, and litigation. Represent cities and towns as counsel and specialcounsel in all areas of municipal law, including zoning, permitting, litigation, SubdivisionControl Law, wetlands, affordable housing, board of health, enforcement, town meetings,contract, licensing, and Open Meeting Law. Tried cases before the Land Court, SuperiorCourt, Housing Appeals Committtee, Alcoholic Beverages Control Commission, and othercourts and state agencies.

Kopelman and Paige, P.C., Boston, MassachusettsPrincipal, 1985 to 2006Concentrate in municipal and land use law and litigation. Advise officials and representmunicipalities and housing authorities in administrative and state and federal court litigation inall areas of municipal law, including: zoning and land use, board of health, comprehensivepermits, housing, Civil Service, Wetlands Protection Act, Subdivision Control Law andlicensing and employment issues. Tried numerous cases before the Superior Court and LandCourt, and represented towns in dozens of appeals before the Housing Appeals Committee.Conduct seminars for client municipalities in a broad range of issues, including comprehensivepermits, land use, licensing and open meeting law. Argued cases before the Appeals Court andSupreme Judicial Court.

Murphy, Lamere and Murphy, Braintree, MassachusettsAssociate, 1982 to 1985In this general practice law firm, concentrated in litigation, municipal and labor law.Represented numerous municipalities in labor issues, including strike petitions, LaborRelations Commission, Civil Service, and arbitration, and extensive court appearances.

Massachusetts Superior Court, Boston, MassachusettsLaw Clerk, 1981 to 1982Law 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 closelywith 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 Courtof Appeals, 1982; Court of Appeals for D.C. Circuit, 1990; U.S. Supreme Court, 2012

Massachusetts Bar Association, Past Chair of Public Law Section CouncilMember, Real Estate Bar AssociationMember, City Solicitors and Town Counsel Association

EDUCATION

Suffolk University Law School, Boston, MassachusettsJuris Doctor, cum laude, 1981

Suffolk University, Boston, MassachusettsBachelor of Science, summa cum laude, 1979

MUNICIPAL OFFICE

Elected Town Meeting Member, 1976 to 1997Housing Authority, 1985 to 1994Finance Committee, 1983 to 1984; 2012-

REPRESENTATIVE SPEAKING ENGAGEMENTS

Massachusetts Association of Planning Directors — 2012, 2011, 2010, 2009 and 2008 AnnualConferences, “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 — New Regulations andCases: Are You Ready?”2009: “Land Use Practice Pointers”2010: “Regulation of Wireless Communications”2011: “Municipal Trial: Evidentiary Proof in Chapter 40B appeals”

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 — “TheState 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”

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 — 2005 Fall CouncilMeeting: “Chapter 40B”

Massachusetts Continuing Legal Education — “Immigration Issues Facing LocalGovernments”;“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 Control—Relevant 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 LAWUPDATE (MCLE 2010)

“Immigration Issues Facing Local Governments”, MUNICIPAL LAW CONFERENCE 2007,(MCLE 2007)

“Municipal Concerns, Procedures and Enforcement”, OBTAINiNG AND ENFORCiNGCOMPREHENSIVE PERMITS, (MCLE, Inc. 2003).

“Municipal Concerns”, OBTAINING COMPREHENSIVE PERMITS, (MCLE, Inc. 2002).

MAHB Legal Handbook for Boards of Health, Chapter II, “Organization and Administration ofHealth 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, Winter1991.“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.

4

PETER L. MELLOPetrini & Associates, P.C.


(508) [email protected]

PROFESSIONAL EXPERIENCE

Petrini & Associates, P.C., Framingham, MAAssociate, 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 andfederal trial and appellate courts, as well as before administrative agencies such as theCivil 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 defendingdepositions, drafting legal memoranda in connection with dispositive and other motions,direct and cross-examination at trial and representing clients at mediations, amongseveral other litigation tasks.

• Advise and represent clients with respect to contract negotiations.

Kopelman and Paige, P.C., Boston, MAAssociate, 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, MASummer Associate, May, 2002 - August, 2002Associate, 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, MAJuris Doctor, 2003Staff Editor, American Journal of Law and Medicine

Brandeis University, Waltham, MAB.A. in Politics, 2000Certificate in Legal Studies

ADMISSIONS

Commonwealth of MassachusettsUnited States Court of Appeals for the First CircuitUnited 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) (unpublisheddisposition), cert. denied 460 Mass. 1111(2011).

Town ofFramingham v. Framingham Police Officers Union, 80 Mass. App. Ct. 1107, 2011 WL4467612 (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 General’sOffice Bid Protest Decision (February 11, 2011).

Lighthouse Masonry, Inc. v. Town ofRockland, Attorney General’s Office Bid ProtestDecision (March 23, 2011).

Interstate Electrical Services Corporation v. Town ofTewksbury, Attorney General’sOffice Bid Protest Decision (November 17, 2010).

PUBLICATIONS AND SPEAKING ENGAGEMENTS

• Panelist, “Public Construction Law Update,” co-sponsored by the Massachusetts BarAssociation Civil Litigation Construction Law Practice Group and the City Solicitors andTown Counsel Association (September 12, 2012).

• Featured Guest Speaker at the Massachusetts School Building Authority Owner’s ProjectManager Roundtable (September 10, 2012).

• Panelist, “Public Construction Projects — Avoiding Traps for the Unwary,” sponsored bythe City Solicitors and Town Counsel Association (April 26, 2012).

• Featured Guest Speaker at the Open Luncheon Meeting of the Environmental Committeeof REBA, the Real Estate Bar Association for Massachusetts (January 25, 2012), todiscuss the case Carney v. Town ofFramingham, 79 Mass.App.Ct. 1129, 2011 WL2672525 (2011), cert. denied 460 Mass. 1111(2011).

• Panelist, “The Municipal Lawyer and Public Construction—Common Issues Faced byMuniczpal Counsel,” co-sponsored by the Massachusetts Bar Association Civil LitigationConstruction 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 ofBostonSJC Impact Bargaining Cases and How They Affect Your Community,” sponsored by theCity Solicitors and Town Counsel Association (May 28, 2009).

• Member of the Newsletter Committee and Regular Contributor, City Solicitors and TownCounsel Association Quarterly Newsletter

• Co-authored an amicus brief on behalf of the City Solicitors and Town CounselAssociation in Fordyce, et al. v. Town ofHanover, et al., 457 Mass. 248 (2010).

2012.09.10 PLM Résumé. doc (Updated 9.13.12)

HEATHER C. WHITEPETRINI & ASSOCIATES, P.C.



LEGAL EXPERIENCEPETRINI & ASSOCIATES, P.C. Framingham, MAAssociate Attorney 2009 to present

• Specializes in the practice of municipal law, including land use and zoning, conservation, realestate 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, MAAssociate 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 DEPARTMENTLegal Intern 2002 to 2003

BAR ADMISSIONSSupreme Judicial Court ofMassachusetts December 2004United States District Courtfor the District ofMassachusetts October 2005

EDUCATIONBOSTON COLLEGE LAW SCHOOL Newton, MAJuris Doctor May 2004

AMERICAN UNIVERSITY Washington, DCBachelor ofArts in Law in Society May 2001

PROFESSIONAL AFFILIATIONS AND EDUCATIONAL PROGRAMSMASSACHUSETTS BAR ASSOCIATION 2004 to present

Public Law Section Council Member 2009 to present

CITY SOLICITORS AND TOWN COUNSEL ASSOCIATION 2005 to presentExecutive Committee Member 2008 to presentPanel Chair: Green Development 2008 Annual Meeting

MASSACHUSETTS CONTII’~TUING LEGAL EDUCATIONPanelist: Zoning Update January 2009

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

CHRISTOPHER L. BROWNPETRINI & ASSOCIATES, P.C.


(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 CivilService Commission, and American Arbitration Association labor arbitrations, representing and advising public andprivate clients in a general practice focused on municipal law, construction law and employment law, includingconstruction 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 extensionproject in the Town of Medway

• Obtaining full penal sum on a performance bond for a construction project in the Town of Framinghamallowing 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 DistrictCourt for the District of Massachusetts, and New Hampshire superior court in litigation practice specializing ininsurance defense, construction liability, motor vehicle liability, premises liability, products liability, environmentalliability, 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, FieldArtillery 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 civiliansworking in support of the United Nations Mission in Kosovo. Served as battalion fire direction officer, Paladin batteryplatoon leader, fire support officer, and headquarters battery supply officer, responsible for various aspects of trainingand 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 2004—Spring 2005)

Bachelor ofArts Illinois Institute of Technology, Chicago, IL May 1998

• GPA: 3.70/4.00; Dean’s List, with High Honors (double major — History and Political Science)

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 AssociationMassachusetts Bar Association

PUBLICATIONS

Author, Insurance Policies and Endorsements to Consider for Public Construction Projects, Municipal LawNewsletter, 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 andTown 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 2001- Present Robert J. HalpinTown Counsel Town Manager

Memorial Building150 Concord StreetRoom 121Framingham, MA 01702508-532-5400rhalpin(~,framingharnma.gov

Peter SellersExecutive DirectorDepartment of Public Works508-532-5600pas~framinghamma.gov

John W. GrandePlanning Board [email protected]

Nashoba Regional School District Michael WoodGeneral Counsel 2006-Present Superintendent of Schools

Nashoba Regional School District50 Mechanic StreetBolton, MA [email protected]

Town of Franklin 2012-Present Mark Cerel, Esq.Special Counsel Town Attorney


Stow Elementary School 2010-Present Ellen SturgisBuilding Committee 380 Great Road

Stow, MA 01775esturgis~gmail .com

Amy Hastings380 Great RoadStow, MA 01775amy-hastings(2I~corncast.net

Town of Weymouth 2005-Present George F. Lane, Jr., Esq.Special Counsel Town Solicitor

Union Towers87 Broad StreetWeymouth, MA 02189781-337-3613

Town of Abington 2011-Present John StoneSewer Superintendent(781) [email protected]

B. Current Municipal Clients for Which BarbaraJ. Saint André Serves as Town Counsel

Town of Sherborn 2010-Present Mr. James PurcellTown Counsel Interim Town Administrator

19 Washington StreetSherborn, MA508-651-7850Dianne.moores~isherbornma.org

Town of West Brookfield 2009-Present Ms. Johanna BarryTown Counsel Executive Secretary

P.O. Box 372West Brookfield, [email protected]

Town of Medway 2007-Present Ms. Suzanne K. KennedyTown Counsel Town Administrator

155 Village StreetMedway, MA508-533-3264skennedy(~townofmedway.org

C. Former Special Counsel Clients of BarbaraJ. Saint André while at Petrini & Associates, P.C.

Town of Scituate 2006-2011 Laura HarbottleSpecial Counsel Town Planner

600 Chief Justice CushingHighwayScituate, MA 02066

-2-

[email protected]

Town of Harwich 2006-20 10 James MerriamSpecial Counsel Town Administrator

732 Main StreetHarwich, MA [email protected]

Town ofNorthborough 2006-2008 John W. CoderreSpecial Counsel Town Administrator

63 Main StreetNorthborough, MA 01532508-393-5040townadmin(~town.northborough.ma.us

Kathryn Joubert, Town Planner(508) 393- 5019kj oubert~town.northborough.ma.us

Town of Braintree 2006-Present Carolyn M. Murray, Esq.Special Counsel Town Solicitor

One J.F.K. Memorial DriveBraintree, MA [email protected]

Town of Holliston 2008-2009 Paul LeBeauSpecial Counsel Town Administrator

Town of Holliston703 Washington StreetHolliston, MA 01746508-429-0601

Town of Hardwick 2006-2008 Sherry PatchSpecial Counsel Administrative Assistant

Myron E. Richardson BuildingP.O. Box 575Gilbertville, MA [email protected]

-3-

D. Former Special Counsel Clients of Mr. Petrini

Town of Tewksbury 2008-Present Charles J. Zaroulis, Town CounselSpecial Counsel Law Offices of Charles J. Zaroulis

40 Church StreetLowell, MA [email protected]

City of West Springfield 2011-2012 James T. Donahue, Esq.1252 Elm Street - Suite 6P.O. Box 465West Springfield, MA 01090-0465Tel. (413) 733-2100

Town of Falmouth 2006-2009 Frank K. Duffy, Jr., Esq.Special Counsel Town Counsel

Town of Falmouth157 Locust StreetFalmouth, MA [email protected]

Tn-Town Board of Water Commissioners Thomas Cummings(serving Braintree, Randolph & Holbrook) DPW Director

2005-2008 Town of HolbrookTown Hall50 North Franklin StreetHolbrook, MA [email protected]

Town of Sutton 2006-2008 James SmithSpecial Counsel Town Administrator

Sutton Town Hall4 Uxbridge RoadSutton, MA 01590508-865-8720j .smith@town. sutton.ma.us

Town of Holbrook 2005-06 William J. PhelanSpecial Counsel Interim Town Administrator

50 North Franklin StreetHolbrook, MA 02343781-767-3143

-4-

Mansfield Municipal 200 1-2003 John D’AgostinoElectric Department Town Manager

6 Park RowMansfield, MA 02048508-261-7370

Town of Mansfield 1999 —2002 John D’AgostinoSpecial Counsel Town Manager

6 Park RowMansfield, MA 02048508-261-7370

E. Former Municipal Clients of Ms. Saint André

Ms. Saint André represented dozens of Towns as principal attorney while at Kopelman andPaige. She was principal attorney for Scituate for over 15 years, principal attorney for Harwich forapproximately eight years, principal attorney for Northborough for over six years, and principal attorneyfor 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 andPaige, she was also most recently principal attorney for the following towns:

Town of Manchester-by-the-Sea 1990-2006 Wayne MelvilleTown Administrator10 Central StreetManchester-by-the-Sea, [email protected]

Town of Plainville 2005-2006 Joseph FernandesTown Administrator142 South StreetPlainville, MA 02762508-695-3142j [email protected]

Ms. Saint André also performed substantial work for numerous other towns while at Kopelmanand 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, I A PETRINI ASSOCIATES, P.C.- general contractors, subcontractors, and design

~ ers at every stage of the construction process. Counselors at Public LawMr. Petrini has served as Framingham Town

Counsel since 2001 and has served as special counsel tonearly two dozen municipalities and public owners throughoutthe Commonwealth in the areas of public construction counseling and litigation. Mr. Petrini serves as co-chair of the Pu b Ii c ConstructionMassachusetts Bar Association’s Construction Law Committee of the Civil Litigation Section and is a Past President of theCity Solicitors and Town Counsel Association. Mr. Petrini has Practice Groupchaired or served as a panelist on more than 20 continuinglegal education seminars on public construction and haspublished over a dozen articles on the same topic. Mr. Petriniwas recognized as a New England Super Lawyer in the cate- Thinking Prospectively.gory of municipal law in 2009 and 2010. Mr. Petrini earnedhisA.B. in Philosophy and Government from Georgetown Uni- Defending Effectively.versity (cum laude) and isa high honors graduate of DukeUniversity School of Law.

Peter L Meilo is an associate at Petrini & Associates, P.C. Mr. Mello has developed a significant Public Construction is a Complexconstruction law practice and has advised clientsregarding construction contracts, claims, insur

V ance protections and myriad other legal issuesarising in public construction projects, includingthose using the Construction Manager at Risk

delivery method. In addition he has successfully representedpublic owners in various proceedings in court and before theBid Protest Unit of the Massachusetts Office of the AttorneyGeneral. Mr. Mello is a graduate of Brandeis University andBoston University School of Law.

Christopher L Brown is an associate at Petrini &Associate, P.C. Mr. Brown has defended developers and contractors in construction defects litigation involving both private and public constructionprojects, and also has assisted private and publicclients in the enforcement of defense, indemnity

and bond obligations and responding to various contractualissues, such as changed condition and extra work claims andsubcontractor demands for direct payment Mr. Brown hasbeen recognized as a Rising Star by New England Super Law- Pu bi IC Owners Needyers in 2009 and 2010 in the civil litigation category. Mr. ~ ABrown is a graduate of the Illinois Institute of Technology (high U flu ~ VI C~ at veryhonors) and Northeastern University School of Law, and is a Phaseveteran of the United States Army.

P A PETRINI ASSOCIATES. P.C.Counselors at Public Law

372 UnionAvenueFramingham, MA 01702

Phone: 508-665-4310/Fax: 508-665-4313E-mail: [email protected]

www.petrinilaw.com

P&A attorneys have Recent Successesprovided sound legal and

practical advice atevery phase of the

construction process

P&A attorneys have provided sound legaland practical advice at every stage of thepublic construction process, including:

• Designer selection

• Procurement process

• Prequalification of bidders

• Preparing bid documents

• Evaluating defects in bid submissions

• Post-award contract negotiations

• Achieving compliance with insuranceand bonding requirements

• Defending against bid protests

• Addressing change orders

• Resolving contractor performanceissues

• Correcting defective work

• Evaluating alleged changed conditions

• Dealing with delays

• Responding to contractual claims

• Prosecuting contractual claims

• Enforcing contractual warranties

• Responding to demands for directpayment from subcontractors

• Mediation

• Arbitration

• Litigation

Enterorise EauiDment Co.. Inc. v. Town of Braintree, NorfolkSuperior Court, C.A. No. 09-1784: P&A successfully defendedthe Town of Braintree from a prospective bidder’s request fora preliminary injunction seeking to enjoin the Town from proceeding with the use of a project labor agreement in connection with the completion of approximately $3.5 million worthof renovations at South Middle School. This outcome wassignificant given the existence of a high legal standard, articulated in John T. Callahan & Sons. Inc. v. City of MaIden,430 Mass. 124 (1999), which often is construed to bar theuse of such project labor agreements.

Interstate Electrical Services Corooration v. Town of Rock~ AGO Bid Protest Decision (February 11, 2011), requestfor reconsideration by Interstate denied by Attorney Generalon March 9, 2011: P&A successfully represented the Town ofRockland in defeating a bid protest by an electrical tradecontract bidder in an approximately $85 million CM at Riskproject.

Li~tithouse Masonry. Inc. v. Town of Rockland. AGO Bid Protest Decision (March 23, 2011): P&A successfully represented the Town of Rockland in defeating a bid protest by amasonry trade contract bidder in an approximately $85 million CM at Risk project.

Interstate Electrical Services Corooration v. Town of Tewksbury, AGO Bid Protest Decision (November 17, 2010): P&Asuccessfully represented the Town of Tewksbury in defeating a bid protest by an electrical sub-contract bidder.

S.B. General Contractors v. Town of Medway: P&A negotiateda favorable settlement on behalf of the Town of Medwayresolving a claim brought by SB General Contacting in connection with the Medway Industrial Park Sewer Expansionproject.

Framingham High School BuiIdin~ Committee: P&A Attorneysprovided ongoing advice to the Building Committee in themulti-million dollar renovation and expansion of FraminghamHigh School. P&A attorneys successfully represented theBuilding Committee and the Town in a lawsuit filed by theGeneral Contractor and negotiated a protective project takeover and assumption agreement with the surety after theGeneral Contractor filed for bankruptcy. The project wascompleted by a follow-on contractor hired by the surety at noadditional cost or time impacts to the Town.

Town of Stow Elementary School Building Committee:P&A negotiated an owner-contractor agreement onbehalf of the Town of Stow in connection with the construction of an elementary school, and has providedongoing counsel as needed throughout the project,including responding to claims for equitable adjustment of the contract price.

Town of Sherborn: P&A negotiated an owner-architectagreement on behalf of the Town of Sherborn in connection with a project involving improvements to thetown’s library.

Fordvce. et p1. v. Town of Hanover. et al., 457 Mass.248 (2010): P&A attorneys Christopher Petrini andPeter Mello co-authored an amicus brief on behalf ofthe City Solicitors and Town Counsel Association in thisleading case in which the Supreme Judicial Court affirmed the Town of Hanover’s award of a contract under G.L. c. 149, §~ 44A-44J, the public bidding statutegoverning design bid-build construction.

• A PETRINI ASSOCIATES, P.C.I X Counselors at Public Law


Phone: 5O8-665-431O/Fax: 508-665-4313E-mail: [email protected]

www.petrinilaw.com

Exhibit 4

10/9/2012

PUBLIC CONSTRUCLAW UPDATE

Massachusetts Bar AssociationSeptember 12, 2012

Christopher J. Petrini, Esq.F & Associates, P.C.© -_~D A PETRINI ASSOCIATES, P.C.

I TX Counselors at Public Law

Program Faculty

®Christopher J. Petrini, Esq.®Peter L. Mello, Esq.®Christopher L. Brown, Esq.

1

10/9/2012

Program FacultyPetrini & 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 haveranged from legal issues related to the bankruptcy of a general c ron a 60million 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 comiOur 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

2

10/9/2012

Program Topics

Peter L. Mello, Esq.® Bidding Issues

• Awarding Authority Investigations ofBidders

• Responsible Employer Ordinances

Program Topics

ChristopherL. Brown, Esq.® Insurance/Indemnity Issues

• Contract Insurance Requirements• Certificates of Insurance

3

10/9/2012

® Contractor alleged changed conditions inpart based upon encountering morecontaminated soils that expected

Law UpdatePublic Constri’~

Payment Issues

Payment Issues—

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

® Silver Line construction® Unit Price Contract

® Claim for statutory interest based e’~failure to timely pay r’~ ~•

4

10/9/2012

Changed Conditions

G.L. c. 30 § 39N contemplates two types of changedconditions:

® Type I Changed Conditions: Conditions that “differsubstantially or materially from those shown on theplans or indicated in the contract documents;” and

® Type II Changed Condition: Conditions that “differsubstantially or materially from those. . . ordinarilyencountered and generally recognized as inherent inwork of the character provided for in the plans andcontract documents.”

Changed Conditions

® Claims under Section 39N have to be inwriting as soon as possible after suchconditions are discovered

® Court ruled against Contractor becauseit presented no evidence that writtennotice of the alleged changed conditionwas provided to MBTA

5

Notice: Written notice stating the general nature of each Claim, shall bedelivered by the claimant to Engineer and the other party to the Contractpromptly (but in no event later than 30 days) after the start of the event givingrise thereto. The responsibility to substantiate a Claim shall rest with the partymaking the Claim. Notice of the amount or extent of the Claim, with supportingdata shall be delivered to the Engineer and the other party to the Contract within60 days after the start of such event (unless Engineer allows additional time forclaimant to submit additional or more accurate data in support of such Claim). AClaim for an adjustment in Contract Price shall be prepared in accordance withthe provisions of Paragraph 12.01. B. A Claim for an adjustment in Contract Timeshall be prepared in accordance with the provisions of 12.02.B. Each Claim shallbe accompanied by claimant’s written statement that the adjustment claimed isthe entire adjustment to which the claimant believes it is entitled as a result ofsaid event. The opposing party shall submit any response to t’--’ ~ ~‘--~r andthe claimant within 30 days after receipt of the claimant’s lastEngineer allows additional time).

10/9/2012

Changed Conditions

In their construction contracts parties may set forth more explicit proceduralrequirement, such as the following illustrative example:

Article 10.05, Standard General Conditions of the CEngineers 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)(’Acontractorwho fails to adhere to the strict claims provision of apublic works contract forfeits all rights of recovery of damages orextra compensation unless the agency waives compliancetherewith 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 authorizedrepresentative of the agency indicating that it would not insir4adherence to the agreement.” Glynn,~ 9 r\462.

6

10/9/2012

® Contractor sought interest based on MBTA’sfailure to pay within 30 days after contractorsubmitted “pen requisition” application for payment

Responding to ChangedConditions Claims

® check all relevant dates, including date of occurrence of eventgiving rise to claim, dates on which contractor provided notice ofclaim, etc.;

€

€ Review contractual claims procedures and confirm timeliness ofclaims;Confirm that public owner has not waived strict compliance withclaims procedures;

€ Ascertain nature of the alleged changed condition (i.e., Type I, TypeII 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


Court ruled that a “periodic estimate,” for purposesof G.L. c. 30 § 39G and 39K is a request forpayment that has been approved in writing by b’the owner and the contractor

7

10/9/2012

Payment Issues—


® Interest payable under the statutes was only duefor payments made more than 30 days after theperiodic estimate, not the contractor’s 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 clearancesubcontractor on public construction project againstgeneral contractor and surety under statutory labor andmaterial payment bond to collect unsatisfied rentalcharges for equipment retained by general contractorafter subcontractor was terminated. Appeals Courtaffirmed trial court judgment in favor of supplier,adjusting award of legal fees to exclude fees relatedother claims.

8

10/9/2012

Subcontractors and materialmen do not have the benefit ofmechanic’s or materialmen’s liens in public construction projects.G.L. c. 149 § 29 (or G.L. c. 30 § 39F for filed sub-bidders) affordsthem the security they need without this benefit. The statute isconstrued broadly to effectuate this purpose.

® Less than $25,000 — neither performance norpayment bonds are required by statute

® $25,000 to $100,000—50% payment bond requiredby statute (G.L. c. 149 § 29), no performance bondreq u i red

Subcontractor/Supplier Payment Issues~

City Rentals, LLC v. BBC Co., Inc.,79 Mass. App. Ct. 559 (2011)

Court rejected the general contractor’s argument that multiple claimnotices were required where the supplier furnished multiple piecesof equipment under four separate rental agreements.

Payment lssL~.Subcontractor/Supplier

G.L. c. 149 Public Building Construction Contracts

® Projects over $100,000 — 100% payment bonds andperformance bonds required

9

10/9/2012

Subcontractor/Supplier Payment lssues~’

G.L. c. 30 ~ 39M Public Works Contracts

® Under $25,000, no payment or performance bondsare required

® Over $25,000, 50% payment bond required, noperformance bond required

Subcontractor/Supplier Payment Issues

None of these statutes preclude a city or town fromrequiring 100% payment and performance bonds onprojects where they are not statutorily required.

Craft contract provisions for bonds that protect theowner:

® Minimal notice requirements® Applicable during project and warranty period® Be wary of bond forms (do they protect your client or

the surety?) -.4

10

NOW THE CONDITIONS of this obligation are such that if the Principal and all Subcontractors undersaidcontract shall well and truly keep and perform all the undertakings, cosenants, agreement, terms, andconditions of said contract on its part to be kept and performed during the original term of saidcontract and any extensions thereof that may be granted by the Obligee, with or without notice to theSurety, and during the life and any guarantee required under the contract, and shall also well and trulykeep and perform all the undertakings,couenants, agreements, terms and conditions of any and allduly authorized modifications, alterations, changes or additions being hereby wai~ed, then thisobligation shall become null and void; otherwise, it shall remain in full force and airtue.

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 ofMassachusetts, with a place of business at _______________________ as Surety (the “Surety”), areheld and firmly bound unto the _______________as Obligee (the “Obligee”), in the sum of_______________________________________________________ lawful money of the UnitedStates of America, to be paid to the Obligee, for which payment, well and truly to be made, we bindourselees, our respectise heirs, executors, administrators, successors and assigns,jointly andseserally, 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]

IN THE EVENT the Contract is abandoned by ti’” ~-“““-“ or is tern”””’”~ ~-vunder 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 ofMassachusetts, with a place of business at ___________________________ as Surety (the “Surety”),are held and firmly bound unto ____________as Obligea (the “Obligee”(, in the sum ot

lawfulrnurmyur Inn u~uinu States of America, to be paid to the Obligee, for which payment, well and truly tobe 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 saidcontractshall pay for all labor performed or furnished and for all materials used or employed in saidcontract and in any and all duly authorized modifications, alterations, extensions of time, changes oradditions 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 includeany 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 Board’s (DRB)award of post-award interest to Contractor

® Since Contractor was paid through interim funding onitems in dispute and Contractor had use of the moniespending the outcome of the dispute, MHD argued that thepost-award interest served only to penalize MHD, andgiven its status as a public entity, the taxpayers

® The Court disagreed with CA/T’s argument, finding thepublic policy favoring arbitration and timely corn pliancwith arbitration awards more significant thanraised by CA/T.

‘


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

® MHD also argued that postaward interest was inappropriate where it did not consent topay postaward interest as a part of an arbitration award, and therefore the interestportion of the award was barred on sovereign immunity grounds.

® The Court also rejected this argument, noting that the rights and obligations of CAITrelative to the award were based on contract, and that the Commonwealth “long agowaived its sovereign immunity against actions brought to enforce obligations itassumed through contracts.”

® The arbitration statute, G.L. c. 251 § I et seq, makes no distinction between privateand public entities, and in agreeing to arbitrate “any and all disputes” in theiragreement, the parties essentially consented to any and all remedies, “specific consentto a particular remedy is not necessary.”

® “[A]rbitrators, unless expressly restricted by the agreement or the submission toarbitration, have substantial discretion to de pe of their contra tiisl

‘to fashion remedies.” ~‘ “ - ,.- ‘ -. - ,

a. ~...~~consent not necessary to

12

10/9/2012

I


Takeaways from the Perini case:

® Methods of dispute resolution provided by a contract arejust as significant as other provisions in the agreement inthe crafting and negotiation of final agreements for publicconstruction projects.

® Address dispute resolution in a way that not only ensuresthat disputes can be resolved as efficiently as possible tokeep the project moving forward, but also resolved withdispute resolution systems that are empowered or limitedas necessary to protect the taxpayer interests involv--~such as, by way of example, providing that a ~not award post-award interest on anyresult in the Perini case -~

Public Constructi’Law Update

w

Bidding Issues

13

10/9/2012

judgment.

Awarding Authority Investigations ofBidders

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

Salient Facts:

® The Town of Holliston solicited bids for the construction of a new policestation. 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 eightmunicipalities that had previously retained Barr as a contractor.

® Six of the eight municipalities contacted had an “overall negative”impression of Barr’s work.

® On the basis of the Town’s independent investigation, the TownAdministrator concluded that “of the eighteen public p~--~’-~Barr on which the town had information, seven had r~experiences’ for the project client.” Barr, ~ 462


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

Procedural Background:

® Barr filed an action in Superior Court seeking injunctiveand declaratory relief, and moved for summary

® The Superior Court denied Barr’s motion for summaryjudgment and allowed the parties’ joint motion to reportthe case to the Appeals Court.

® The SJC transferred this case on its cthe Appeals Court.

14

10/9/2012



® Barr argued that G.L. c. 149, § 44D limits anawarding authority’s scope of review exclusively toinformation contained in a contractor’s DCAM file,and therefore the Town’s determination wasimproper.

BiddersAwarding Authority Investigations of

Barr, Inc. v. Town of Holliston, 462 Mass. 112 (2012)G.L. c. 149, § 44D(1)(a) provides:

0

® “Every bid or offer submitted for a contract subject to section forty-four A shall beaccompanied by a copy of a certificate of eligibility issued by the commissionershowing that the bidder or offeror has the classification and capacity rating to performthe w’-’~’- ~‘- ~d. The bid or offer shall also be accompanied by an update statementir he commissioner shall prescribe. A blank copy of such form shall beft ...-- . ~ requesting a

~ctsy, all projects

~antage ofns oFthe personnel~ contract, any

work on such projects not completed, the nameswho will have supervisory responsibility for t’significant changes in the bidder’s or offerororganization since the date of certification olinformation as the commissioner shall prescin its bid or offer and update statement the Iisubmitted to the division in its most recent abid or offer submitted without the appropriate ~invalid.”

r or offeror shaI construction p

for con~’”””e and u

15


G.L. C. 149, § 44D(6) provides:

® “In determining who is the lowest responsible and eligible bidder as required inparagraph (2) of section forty-four A, the awarding authority shall consider theinformation submitted by the bidder in the update statement. If the awarding authoritydetermines that the low bidder is not responsible and eligible, the awarding authorityshall 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 assetmanagement and maintenance.

In determining which is the most advantageous offer, the awarding authority shallconsider the information submitted by the offerors on the update statement.”

810 CMR 8.04(2) provides:

® An Awarding Authority, in determining the lowestconsider the information submitted in the Update:Contractor’s certification file from DCAM.

10/9/2012


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

® “First,they assure a minimum level of contractor competence, onesafeguarded by DCAM through its certification process.” Barr,~ 462 Mass. at 116 (citation omitted).‘Second, they establish DCAM as a clearinghouse of informationbetween and “among individual awarding authorities.” Id. (citationsomitted).

® “Third, they provide awarding authorities with “guidelines issued byan expert authority”—thatis, DCAM—on how to determine whethera bidder can successfully complete a construction contract in atimely manner.” Id. (citation omitted).


16

The SJC ruled that “when an awarding authority is making a determinationas to bidder responsibility,” it is not “constrained to look only at materialscompiled as part of the [DCAM’s] contractor certification process,” butinstead “may consider information bearing on a bidder’s responsibility — orlack thereof — outside that contained in DCAM’s records on the bidder.”Barr, Inc., ~ 462 Mass. at 112-113, 114-115.

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® In reaching these findings, the Court noted that “the entity responsible formaking a final determination of bidder responsibility remains the awardingauthority, not DCAM” consistent with express terms G.L. c. 149, § 44”legislative history. Id. at 116-117.



® The SJC concluded that although G.L. c. 149, § 44D(6) requires that an awardingauthority consider information in a bidder’s update statement, and 810 CMR 8.04(2)requires that an awarding authority review the contractor’s certification file from DCAM,“nothing in either the statute or DCAM’s regulations expressly precludes the awardingauthority from conducting an independent investigation into the past performance ofpotential bidders.” Id. at 117.

~ “Moreover, the statutory requirement that awarding authorities in fact read and considerinformation related to a bidder’s performance in at least some past projects does notsupport the inference Barr suggests, that the Legislature wished to prevent awardingauthorities from considering the bidder’s performance in a wider sample of suchprojects, 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

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 beforeit aa to one bidder but not aa to another, that deciaion ahould alao be juatifiable on the record,aa ahould an awarding authority’a deciaion to deny a bidder any opportunity to reapond to thereaulta 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 awardingauthoritiea “ahall conaider the information aubmitted by the bidder in the update atatement.”

10/9/2012

I



ce The Court also added that “the information garnered from an awarding authority’sindependent investigation of a bidder may at times be of equal or greater recencyand relevance than the information in DCAM’s certification file and the bidder’supdate statement,” dat 119.

® “DCAM’s certification file need include only a ‘representative sample’ of acontractor’s public sector projects, and will not necessarily reflect performance inany of the contractor’s private sector work. 810 Code Mass. Regs. § 4.06(2).” Id.

® “Accordingly, DCAM’s certification file may exclude a significant portion of thework history of contractors with extensive experience, or with experienceprimarily in private sector construction projects. Awarding authorities should notbe precluded from assembling a more complete picture of a contractor’squalifications than that available from the certification file and ualone.” Id.


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

©

Id.“DCAM regulations require further that awarding authorities ‘~‘““ ~“‘‘ ‘‘

certification file from DCAM.” citing 810 Code Mass. Rega. §

18

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® The plaintiffs challenged the constitutionality of a responsible employerordinance (REO) enacted in the City of Fall River in 2010.

® The ordinance set forth certain requirements and prerequisites forprospective contractor bidders on “construction projects funded by FallRiver or federal grants or loans.” UCANE, ~ 2011 WL4710875 at

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 representscontractors, materialmen, suppliers and associatemembers who are principally engaged in publicconstruction projects in New England.

® W. Walsh Company, Inc. (“Walsh”) is a constructioncontractor and member of UCANE.

® Rodney Elderkin is a citizen of RIwith Walsh as a construction


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

@ Salient provisions of the REQ included residency, apprenticeship, andhealth and welfare and pension plan provisions.

@ The plaintiffs alleged that the REQ improperly disqualified Walsh frombidding on publicly-funded City construction projects and that as aresult of the REQ Walsh did not bid on a certain City dam

19

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Relevant Terms of the REQ:

0 The residency provisions required that 100% of the apprentices and50% of all other workers for any construction project be Fall Riverresidents.

® The apprenticeship provisions required all contractors to maintain andparticipate in an active apprentice program that must have operatedwithout suspension for at least three years prior to the bid date andwhich must have graduated at least two apprentices per year per tradefor the same period.

0 The REQ also required contractors to furnish a pension/annuall employees on the project, and bidders and subat their expense, hospitalization and medical beemployees employed on thep



Plaintiffs asserted that:

® The residency provisions violated the Privileges and Immunities clause of theUnited States Constitution and the due process and equal protection clauses ofthe Massachusetts Constitution;

o the apprenticeship, health and pension provisions were preempted by ERISA;0 the residency, apprenticeship, health and pension provisions violated the Home

Rule Article of the Massachusetts Constitution which prohibits regulation of theprivate employer-employee relationship without statutory authority;

o the apprenticeship provisions of the REQ violated Massachusetts public biddinglaws; and

o the health care provisions of the REQ violated Massachusettslaws.

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

20

® As a primary defense the City relied heavily upon the fact that its City Council hadrepealed its REO and reenacted a prior similar ordinance that, the City contended,rendered moot the plaintiffs’ challenge of the REQ’s residency and pension/annuityrequirements.The Court cited U.S. Supreme Court case law discussing the “well settled rule that adefendant’s voluntary cessation of a challenged practice does not deprive a federalcourt of its power to determine the legality of the practice.” UCANE, su ra , 2011 WL4710875 at 2, quoting Northeastern Florida Chapter of Associated Genera Contractorsof America v. City of Jacksonville, 508 U.S. 656, 662 (1993); City of Mesquite v.Aladdin’s 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

10/9/2012


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

reason to beli€therefore an in2.



® It was undisputed that Walsh did not bid on the underlying dam project afterthe 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 City’s argument on standing as “irrelevant,” finding

that “[un the bidding context, ‘[linjury in fact is the inability to compete on anequal 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 sanctionshas standing to challenge its application and therefore a party need notshow that the law is being enforced or will be enforced.” L” ~“

2011 WL4710875 at 3, quoting ~ v. City of Urbana, Ill.103 (1997).

21

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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 citizensof 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.).

o “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 sothat the nation may function as a single economic union.” UCANE, ~p~y 2011 WL4710875at4, quoting A.L. Blades & Sons, Inc. v. Yerusalim, 121 F.3d~~S~B69—870 (3rd Cir.1997)(internal citations omitted).

~ “The word ‘states’ in the Clause is construed broadly and its pro”””’~ “““““~ ““‘~ tomunicipal residents.” UCANE, ~p~,2011 WL4710875 at4, C HConstructionTrades CEtiii6iTof Camden Countyv. Mayor and CU.S. 208 (1984) (tact that ‘ordinance isa municipal, rather thanoutside the [] scope [of the Privile~ ‘ ‘ —. -

political subdivision of the State, aState can no more readily be acco~~



Key Privileges and Immunities Clause Principles:

® “The Privileges and Immunities Clause only prohibitsdiscriminatory acts that satisfy a two-step test:(1) first, the discriminatory act must be shown to impair one ofthe privileges protected under the Clause;

® (2) next, the burden shifts to the government, here Fall River, toestablish that it had a substantial reason for the difference intreatment and that the discrimination bore a s’relationship to its objectives.”

UCANE,~P~, 2011 WL4710875at4, -~‘~-- — ‘.‘.---“

- Court of Virginiav. F

22

“Sections 2—945 and 2(iv) of the 2010 REQ requires any prospective bidderon Fall River construction projects to staff its team so that 100% of theapprentices and 50% of all other workers are Fall River residents. Thisessentially requires that the majority of all workers on every Fall River job beresidents. Such a scheme puts UCANE members that do not employextensive quantities of Fall River residents at a competitive disadvantage—they will have to expend time, effort and resources recruiting Fall Riveremployees prior to bidding on a Fall River construction project. Therefore,any contractor who already enjoys a high margin of Fall River employeeswill have an unfair economic advantage since it will not have to enga~further recruitment efforts.”

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Court’s Privileges and Immunities Clause Analysis:

at4.

o The Court found that the City “apparently in reliance onmootness, does not advance any substantial justification for thediscriminatory ordinance.” UCANE,~p~ ,2011 WL4710875

o As a result, the Court held that it only needed to address thefirst prong of the Privileges and Immunities Clause“namely, whether the municipal residency re~2010 REQ burdened a recognizE



Court’s Privileges and Immunities Clause Analysis:

UCANE,~~ 2011 WL4710875 at 5.

23

“Such municipal residency requirements implicate the right of workers, such as Elderkin, to beproductive and find suitable work. There is a “fundamental right to employment, where theemployee is hired by a private employer who receives a government contract to work on apublic project.” AL. Blades, 121 F.3d at 871; Connecticut ax re!. Blumenthal v. Crotty, 346F.3d 84, 97 (2d Cir.2003) (“pursuit of a livelihood, [is) a fundamental right within the purview ofthe Privileges and Immunities Clause”); O’Reilly 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 oneof the most fundamental of those privileges protected by the Clause.’).”

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® Because the 2010 REQ residency requirements impede a fundamental rightunder the Privileges and Immunities Clause and Fall River does not offerany justification, the Toomer test is satisfied, and as a matter of law theresidency requirement is invalid, See O’Reilly, 942 F.2d at 284 (invalidatingcounty regulation requiring taxi cab drivers to be familiar “with thegeographical area to be served” before they could receive a passengerlicense),


UCANE v. City of Fall River,2011 WL4710875 (D. Mass.)Court’s Privileges and Immunities Clause Analysis:

LlCANE,~g~~, 2011 WL4710875 at5.

o Because the 2010 REQ residency rer~” “~“ “~“ ~“‘‘“ “~‘ “.“‘

Priviieg~ sand Immuni --

w the residF.2i. ,.., ~ ~ county regulation requigeographical area to be served” before they coi



UCANE,~P~, 2011 WL4710875at5.

24

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® Barletta was the general contractor for MBTA’sCharles/MGH Red Line Station Accessibility andModernization Project.

Law UpdatePublic Constructi~

Insurance/Indemnity’~””

Contract Insurance Requirements

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

® Layne was the drilling subcontractor to Barletta.Pursuant to the Subcontract, Layne namedas an additional insured in its CGL policy, wha $2,000,000 limit and a $500,000 dE’

25

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® Layne provided a certificate to Barletta. Thecertificate did not mention the deductible, butindicated that “[t]he insurance afforded by thepolicies described herein is subject to all the terms,exclusions and conditions of such policies.”

® Layne’s drilling work resulted in property damageand third-party claims by a property owner i’claims by the MBTA against Barletta,v~settled for approximat&y 1~


I

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

RequirementsContract Insurance—


® Contract requirements — Layne had to preserve and

® Layne’s proposal (incorporated into contract)• Layne not responsible for damages to

underground/overhead utilities, structuresobstructions that interfere with

protect from injury all property which may be affectedby its operations

26

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• “The Subcontractor shall indemnify, defend and hold theContractor.. harmless from and against any and all claims,losses, costs, damages, liabilities [etc.]..., caused in whole orin part by any negligent act or omission of theSubcontractor...



® Indemnity provision

• Jury found that while Layne was negligent, but found thatLayne’s negligence was not a substantial factor in cthe damages



® Insurance provision• “Subcontractor shall maintain and pay for all insurance of the

types and equal to or greater than the limits as required ofthe General Contractor in the [General] Contract Documentsand as set forth on the attached... Exhibit C.... Subcontractorshall forward an executed Certificate of Insurance to theContractor with the return of this Subcontract.... TheGeneral Contractor shall be named as an ‘additional iwon the general and automobile liability policies.” —

27

10/9/2012

® Barletta brought declaratory judgment actionagainst Layne’s carrier, Zurich, in NorfolkSuperior Court


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

.

.

Exhibit C included “[cjlaims for damages because of injury toor destruction of tangible property, including loss of useresulting therefrom.”Exhibit C specified a property damage policy limit under theCGL policy of $2,000,000

RequirementsContract Insurance—

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

® Court concluded that claims were excluded fromcoverage (Layne’s acts or omissions did notcause the damages) but that Zurich had a chto defend Barletta with respect to cL~because they arose out of Lr’

28

10/9/2012

Barletta settles defense costs with Zurich for$200,000 and settles claim costs with its owninsurer, Charter Oak, for $300,000

® Barletta unable to make claim under Zurichpolicy because total damages alleged wereless than $500,000 deductible



Barletta argues Layne liable for $600,000,based on failure to provide primary insu($300,000 plus attorney’s

I



Contract insurance requirements did notindicate whether a deductible was accr-~-or how much

29

10/9/20 12

pay any deductible applicable to a claim ofBarletta falling under the policy


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

® Court found that Layne was responsible to

® Named insured is generally responsible fordeductible

RequirementsContract Insurance

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

® Layne not responsible for deductible becauseclaims were not covered under Zurich policy

® Exclusions were contained in standard ISOforms

® Court found it unreasonable for Barletta toexpect insurance without the exclusionsapplicable here, therefore Layne did not vio’~Subcontract by procuring insurance if -

excluded these claims

30

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® Takeaways

documents



• Conflicting language in proposals/contract

• Importance of insurance requirements• Language regarding deductibles• Action-based indemnity language v.

based indemnity Ian’~”-”~-’

Certificate of Insurance Issues

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

® 30 story apartment building construction inBoston

® Suffolk subcontracted concrete work to S&FConcrete

® Suffolk obligated S&F to require its lower-tiersubcontractors to maintain CCL insuranc”name Suffolk as an additional iliability policies

31

10/9/2012



® S&F subcontracted by purchase order with Hallamorefor the rental and operation of two cranes at the projectsite.

® Illinois Union was Hallamore’s CGL carrier.® The purchase order made no reference to the addition

of insureds to Hallamore’s CCL policy.® Hallamore’s president considered it a contractual du~”

to include Suffolk and S&F as additional insuiHallamore’s policy with Illinois Union.



® Hallamore’s insurance agent subsequently forwarded a Certificateof Insurance to S&F describing S&F and Suffolk as additionalinsureds under Hallamore’s CGL policy with Illinois Union.However, the certificate stated, “THIS CERTIFICATE IS ISSUEDASA MAHER OF INFORMATION ONLY AND CONFERS NORIGHTS UPON THE CERTIFICATE HOLDER. THISCERTIFICATE DOES NOTAMEND, EXTEND OR ALTER THECOVERAGEAFFORDED BY THE [pertinent general liabilitypolicy].”

® A certificate of insurance with this lan~uage does not accc~the addition of insureds to the ~ the poliComm. v. Gall, 58 Mass. App. ~.

32

10/9/2012



® The additional insured endorsement in Hallamore’sCGL policy provided by Illinois Union set outschedule space for additional insureds, withadditional language “AS REQUIRED BYCONTRACT, PROVIDED THE CONTRACT ISEXECUTED PRIOR TO LOSS” (emphasis e~’



® Oiler working for Hallamore fell off a ladder at the work siteand sued Suffolk and S&F on a negligence theory for claimednegligent maintenance of an unsafe work area.

® Suffolk and S&F called upon Illinois Union to provide themdefense and indemnity, arguing that the S&F purchase order,subsequent correspondence including S&F’s request thatHallamore add Suffolk and S&F as additional insureds, andthe insurance agent’s certificate of insurance togetherconstituted evidence of an oral agreement by Hname Suffolk and S&F as additional insureds~

33

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® Court ruled for Illinois Union, however, based on the“executed” language in Illinois Union’s policy.

® The ordinary meaning of “executed” refers to a signedcontract, or a legal document made valid by signing.


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

® Because there was no signed, written agreementrequiring Hallamore to include Suffolk and S&F asadditional insureds, the Court found that Illinois Uniidid not owe either of them defense or indemrthe claims of the injured worker.


Hiqqinsv. HHI Corp., Inc.,2011 WL7788020 (Mass. Super.)

® Plaintiff injured on a residential construction project whenhe was struck in the head by a framing nail fired from anail gun by a co-worker. He was an employee of theframing subcontractor for the project. HHI brought a third-party action against the framing subcontractor’s insurer,claiming it was an additional insured under thesubcontractor’s CGL policy.

® Insurer motion for summary judgment that HHI wasadditional insured under its liability policy•subcontractor.

34

10/9/2012

® Policy provided a “contractors extensionendorsement” allowing certain persons or entitiesto become an additional insured if subcontractorwas performing work for them and the two parties“agreed in writing in a contract or agreement thatsuch person or organization be included as anadditional insured on your policy.

® The Court ruled for the insurer. The certificate did notpurport to be a contract or agreement between HHI andthe subcontractor. The Court noted the disclaimerlanguage in the certificate expressed to the contrary. TheCourt further found that there was no evidence theinsurance broker acted as the agent of the insurer whenthe certificate was created and issued. The insurer hadno duty to defend or indemnify HHI.


Hiqqinsv. HHI Corp., Inc.,2011 WL7788020 (Mass. Super.)

® HHI based its claim on receipt of an u~certificate of insurance apparentlsubcontractor’s i nsuran~ -‘ -


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

® Implied but not clear from the decision — if therewritten contract between HHI and this su~’”’4was no insurance requirement in ti

35

10/9/2012

insurance.

• THE INSURANCE AFFORDED BY THE POLIcIEs [SUBJECT TO ALL THE TERMS, EXCLUSIONS ANDPOLICIES.


BOTTOM LINE —

1. Do not trust certificates of

2. Review the policies, includingany exclusions orendorsements, to confirmcoverage.

I


A Certificate of Insurance is not itself a valid endorsement to apolicy and usually does not provide the specifics of what may becovered if an actual policy endorsement has issued. Standingalone, certificates of insurance generally contain disclaimerlanguage stating:

THIS CERTIFICATE IS ISSUED AS A MAHER OF INFORMATION ONLY AND CONFERSNO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOTAMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW

Additional disclaimers are typically present advising the certificateholder:

In other words YOU HAVE TO

36

10/9/2012


Massachusetts courts have generally held that the disclaimers onthe Certificate are sufficient to put the certificate holder on notice toobtain a copy of the policy and confirm the coverage provided.

Commonwealth v. Gail, 58 Mass. App. Ct. 278 (2003)

G. Conway, Inc. v. Tocci Bldg. Corp., 18 Mass. L. Rptr. 565, 566(2004) (“mhis court finds that the certificate of insurance is aninformational document evidencing the existence of an insurancepolicy ).

Shumway v. Eastway Plaza, 2002 WL 533863 *7 (Mass.Super.)(”The certificate’s 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

Questions?w

37

Exhibit 5

Front Page Massachusetts Lawyers Weekly ArticlesWhere 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. 5/26/03 John D. Cunningham “Bylaw Permitting Smoking Trumped byBoard of Health”

2. 7/21/03 David E. Frank “Town Not Required to Supply PublicServices to Developer”

3. 3/1/04 John D. Cunningham “Town Must Split Costs for SewageExpenses”

4. 7/23/07 John D. Cunningham “Attorney-Client Privilege Protects DCAMDocuments”

5. 9/1/08 Eric T. Berkman “Police OT Can Be Cut”6. 3/29/10 Eric T. Berman Notice on OT Not Required of

Municipality”

II. Front Page MLW Articles with CJP Quoted:

7. 1/4/10 David E. Frank “Town board can hire own lawyer”8. 8/16/10 Phillip Bantz “Law extending permits received mixed

reaction”9. 8/22/1 1 Eric T. Berkman “Insurer’s malpractice suit vs. town counsel

allowed”10. 11/3/11 David E. Frank “State database will reveal spending by

judges, staff’11. 1/30/12 Al Turco (p. 3) “Law firms lining up for casino contracts”12. 6/4/12 David E. Frank “Land Use Attorneys Split on Impact of

‘Regis’ Ruling”13. 9/17/12 Eric T. Berkman “Town Can Charge Sewer System Fee:

Developer’s Protest ‘Impermissible Tax”

Last Updated: 9/17/12

2012.01.3] List ofCJF MLWArticles (2700-07 CJP).doc

Exhibit 6

• MASSACHUSErIS

LAWYERS WEEKLY~

From the March 01, 2004 Massachusetts Lawyers Weekly.

Towns Must Split Costs For Sewage ExpensesBy John 0. Cunningham

Two towns that shared sewer facilities were required to split operating expenses and all futurecapital costs for all shared systems, the Massachusetts Department of Telecommunications andEnergy has decided in a rare 54-page ruling.

The Town of Ashland, as respondent, argued that capital cost sharing should be limited to sharedinterceptor sewers and piping because there was no evidence that its sewage caused anyoverflows to the existing Framingham system.

But a panel of commissioners at the DTE disagreed, ordering the respondent to pay aproportionate share of future capital investment costs, as well as maintenance and operationscosts.

“[B]ecause the parties are in agreement that [a] subset of pipes .. is used by Ashland ... theDepartment finds Ashland must contribute a share of the capital cost for projects related to thosefacilities identified by Framingham . includ[ing] all structures that are appurtenant to the eligiblepipe segments,” the panel said.

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

The panel also adopted Framingham’s formula for operational cost sharing based on ratios ofsewage flows between the towns because it met DTE’s 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 bythe OTE and the analysis that it employed could well impact the interpretation of othercommunities’ 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. Higginsnoted that “there have been other special acts [of legislation] that authorized particularmunicipalities to enter into [such] agreements.”

1

She credited the victory in part to the weight given to the petitioner’s expert witnesses and expertanalysis based on the history of dealing with shared wastewater treatment systems.

Petrmni added that the “simplicity and fairness” of Frarningham’s proposed method of cost sharingcarried the day with the panel, which effectively imposed a new agreement to replace one thathad ceased to be effective through a common “opener’ clause.

Noting that Ashland’s share of annual expenses would now increase by more than $270,000 peryear, Petrini suggested that towns could benefit from revisiting allocations made under oldagreements’.

He also observed that “the decision has broad potential applicability” given numbers of otherintermunicipal arrangements for growing suburban towns with limited infrastructures during timesof budgetary crisis. V

Joseph F. Hardcastle of Boston, who has extensive experience in litigating telecommunicationscases before the DTE, said that “the decision is a great illustration of how the DTE approachesany 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 experttestimony 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-beable 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 whosubmitted 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 chargespaid by the Town of Ashland for shared sewage systems be reset

The parties stipulated to jurisdiction under a special municipal act facilitating an intermunicipalagreement 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 aportion of that covering all.amounts of sewage flow exceeding the first I million gallons.

The agreement also stipulated that after 30 years Ashland had”made full payment for itsproportionate share of capital costs of Framingham’s sewer system, and all further charges wouldbe based on operating costs only.

But the intermunicipal agreement also stated that Ashland should pay to Framing ham “a fair andequitable proportionate share of the actual cost of the maintenance of the system.”

2

Framingham argued that the appropriate formula for calculating Ashland’s share of operationalcosts should be based Ofl Ashland’s percentage of flow as part of the total system flow.

Ashland countered with two, alternative formulas that were more complicated and based on inch-miles of sewage pipeline and usage.

The parties agreed that it would be fair for Ashland to pay a percentage of total capital costs forthe system incurred in the future because the system was in need of upgrading, but theydisagreed on the method.

Ashland argued for limiting ‘its capital exposure to “certain sewer trunk lines” under theintermunicipal agreement

Capital Costs

The commissioners determined that the petitioner could recover cOntrib~tjons for capital costs onfuture improvements to shared systems although they might not present direct immediate benefitto the respondent

The panel noted that the parties agreed that a monetary threshold of $25,000 and a useful Fife offive years could be used to distinguish capital projects from operational ones.

it also noted that the respondent sought veto power over the petitioner’s wastewaterinfrastructure decisions while the petitioner simply proposed that the towns share costs based onratios of peak flows with some “credits” given where either town does not need additional.capacity.

The panel concluded that “Framingham’s proposed method for addressing increased flow fromonly one town is reasonable.”

The commissioners also found that “in the case in which a larger capacity pipe is built to servethe 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 ofthe existing facilities.”

They said that if both towns continue to use the shared facilities for many years, then the town notneeding increased capacity would still benefit to some measurable degree from the capitalupgrades.

• Operational Costs

The panel accepted the petitioner’s formula for sharing of operational costs.

“Framingham’s formula meets the department’s goal of simplicity, as its clearly defined termsmake it easy to understand,” the commissioners said.

They added that the proposal “also achieves the department’s goal of fairness, as Ashland will bepaying its proportionate equitable share of Framingham’s sewer-related [operation andmaintenance] costs.”

,The panel stressed that it was guided by “long-standing rate-setting goals of efficiency, simplicity,continuity, fairness, and earnings stability.” V

3

It noted that the proposal of the petitioner achieved those goals, while the respondent’s proposalwas 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 aflow ratio, would be inappropriate” the pane! said.

Commissioners concluded that any discounting of the respondent’s share of costs beyond that ofthe flow ratio system proposed by the petitioner “would send an improper signal to Ashlandregarding 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.

4

Exhibit 7

i)~X~~~RS~ww~messiawyersweeldy~co,n

From the July 21, 2003 Massachuse~ Lawyers Weekly.

Town NotRequired To Supply Public Servjces ToDeveloper

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 low-income apartments, a Superior Court judge has ruled.

The plaintiff developers argued that their status as a G.L c. 121A corporation precluded the townfrom altering an arrangement where the developers received financial incentives — including freetrash pickup — to develop the apartitients.

But Judge Margaret R. Hinkle disagreed, granting the defendant town’s motion for summaryjudgment on several counts.

Hinkle acknowledged that “Section 6A of Chapter 121A makes developers immune ‘from changesin terms and conditions of the financial arrangement [made with a town], particularly the Sect 10t~ concessions.’”

But the judge added that “Section 6A does not ... protect owners of Chapter 121A projects fromchanges ‘which deal with matters of general regulation of the community in a manner closelyrelated to its health, morals, safety and fundamental welfare.”

The 17-page decision is Corcoran Management Co., Inc., et at v. Town ofFramingham, LawyersWeekly No. 12-173-03.

Significant Decision

Christopher J. Petrini of Boston, counsel for the defendant town, Said that “the decision issignificant because there are a number of Chapter 121 A corporations, some of them quiteprominent 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 tospecial benefits with respect to municipal services ... by virtue of their Chapter 121A status.”

1

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

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

TimothyM. Corcoran of Milton, counsel for the plaintiffs, could not be reached for comment priorto deadline.

Taking Out The Trash

Two plaintiff development corporations owned two apartment complexes, each with over 250units 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 townat no charge, but there was no application for Chapter 121A status until rehabilitation of theapartments in 1990.

The application contained an Exhibit G entitled “Division of Operating Expenses,IT which listedgarbage and trash removal as an allocation expense.

By virtue of Chapter 121A, the complexes were also made tax exempt for 40 years arid thecorporations paid urban redevelopment fees in lieu of taxes.

On Jan. 26, 1990, the Framingham Housing Authority and the town executed an agreementregarding low-income housing and payments in lieu of taxes, which provided that “The Authorityshall make annual payments ~. in lieu of taxes and in payment of public services and facilitiesfurnished from time to time without ... cost or charge.”

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

Other so-called Section 6A agreements between the corporations and the town provided foradditional excise payments under some circumstances, but did not address municipal servicessuch as trash collection.

On June 28, 1999, the Board of Public Works formally approved a sanitation policy requiringdwellings 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 trashpickup at their apartments, and he contacted the senior property manager to asic for evidence thatthe units were entitled to curbside pickup.

The property manager insisted that it was the practice of the plaintiff corporations to reach a clearunderstanding with local officials about municipal services prior to application for Chapter. 121A.statue, and added that the town’s past conduct and practices affirmed that

The town manager reviewed the Chapter 121A documents and concluded that they did notobligate the town to provide trash pickup: the town discontinued trash services to approximately5,000 residential units in December 2002.

2

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 andbreach 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 obligationto continue picking up trash.

She specifically rejected. an argument that the town and the plaintiff considered the benefit oftrash services when entering into the so-called Section 6A agreements, but she acknowledgedthat the Chapter 121A application and the agreements should be read together as an expressionof the parties’ intent

Still, the judge found that “[r]eading the Application and the GA Agreements as a whole does notshow 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 ordecrease in public services needed by the project” was a broad reference to municipal servicessuch as fire and police protection, and it did not indicate any implied promise regarding trashpickup. -

She also rejected the notion that the cooperation agreement between the town and the housingauthority 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 acontract only if the promisee intends to give the third person the benefit of the promisedperformance.

Hinkle did not see the cooperation agreement itself as evidence that the town and the housingauthority 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 originalfinancial incentives to rehabilitate the apartments.

“Although the expense of trash collection might impact the plaintiffs’ return on their investrhenttrashcollection 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.

3

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 inovertime pay says aU.S. District Court judge’s ruling clarifies, for the first time, what steps must betaken to ciomply with the Fair Labor Standards Act.

Relying on the statute’s public safety exemption, which permits municipalities to alter law enforcementwage schedules, Judge George A. O’Toole Jr. agreed that the defendant town of Framingham wasentitled to create a pay cycle in which officers could qualif~’ for overtime only by working at least 147hours in a 24-day period.

“What the judge is saying is that if a town has taken bona fide steps to declare an alternative workperiod, 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 memothat had been circulated around that the police chief, the fire department heads and other people wereawnre of. That evidence allowed us to show that the town bad declared the [statute’s] work exemption.”

The plaintiff police officers countered that the town had failed to properly implement the altered payperiod, as required by the 1st U.S. Circuit Court ofAppeals’ landmark 2003 decision in O’Brien,. et at. v.Town of Agawam, et aL, a case in which the court held that the FLSA’s public safety exemption in 29U.S.C. §207(k) can be triggered only when proper notice is provided.

Rather than requiring a traditional 40-hour week pay structure, O’Toole granted summary judgment infavor ofFramingham after finding the town had complied with the statute and the 1st Circuit’s ruling.

“Understood most favorably to the plaintiffs, [Agawarn] requires a Town both to announce the adoptionof a qualifying work period and to take bona fide steps toward implementing the announced workperiod,” 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 O’Toole was the first since Agawam in which a court was asked to definethe meaning of “bona fide steps.”

“Agawam is a really important decision that’s prompted several important rulings, but this is the firstI’m aware of that dealt with the question ofwhat the court needs to find a bona fide step has been takenunder the statute,” he said. “We had to look to other jurisdictions to support our argument on what theapplicable standard should be.”

Jack S. Canzoneri ofMcDonald, Lamond & Canzoneri in Southborough, who represented the plaintiffofficers, said he plans to appeal on grounds that the judge should have given greater deference to theDepartment of Labor, which oversees FLSA disputes.

“The Department ofLabor 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 thislawsuit 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’ laborlawyer who successffilly represented the police officers in Agawam, said the 1st Circuit clearly held in2003 that an employer must present evidence of an intent to establish a qua1i~ing work period.

“It’s a very minimal standard, but the town has to make some affirmative step with the intent of havingthat be a designation of a quali~ing 207(k) work period,” he said. “You could, for instance, send amemo to the union saying: ‘We are hereby adopting a 207(k) work period.’ But the bottom line is youhave to take some affirmative steps.”

• Unlike in Agawam, Connor, who was not involved in the Framingham suit, said the steps taken in thecase before O’Toole seemed appropriate.

“If there was a memo or some type of notice on the part of the employer saying they wanted todesignate a 207(k) work period, that sounds like enough,” he said. “I have read every case in everycircuit on this issue, and if that kind ofevidence is there, that’s going to be sufficient in my view.”•

• Connecticut attorney David A. Robinson, who represented the defendants in Agawam, said uponreviewing O’Toole’s decision, the evidence showed there was an explicit declaration that wascommunicated to the police officers.

• “All that the 1st Circuit said in {Agawam] is that the town has to adopt or simply announce that itchooses 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 forhours the officers spent on duty that exceeded the traditional 40-hour-week threshold.

Claiming the department’s work structure system violated the FLSA, the officers sought back pay fromthe past three years. The town argued the officers were working on a 24-day work cycle, which wascreated in 1986.

Under that schedule, the officers worked on a five-day on, three-day off rotation, which the partiesagreed made it tougher to accrue overtime pay. In response, the officers claimed the alternative workshift was not adequately communicated to them, and the town had failed to take proper steps towardimplementation.

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 Lawyçrs Weekly - Police OT can be cut3 of 3sufficient “bona fide” steps to declare the work period via a memorandum issued by the townadministrator. -.

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, O’Toole held that they were entitled to overtime wages only for hoursworked 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 FirePersonnel.”

The memo, which he found was sent to the police and fire chiefs, personnel director and town counsel,stated that Framingham’s 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 townoffices, for the purpose of implementing the Town’s election of the [statute’s] 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-towncounsel and town administrator, did not recall the memo, O’Toole wrote the evidence showedotherwise.

“[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 thanadequately establish the historical fact that the Town elected to take advantage of the §207(k)exemption by adopting a qualit3’ing 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-safetyexemption from overtime requirements under the Fair Labor Standards Act, the 1st U. S. Circuit Court ofAppeals has found.

The officers, who had brought a putative class action against Framingham, argued that the town could notestablish the qualifying work period that the FLSA provision, §207(k), requires for an exemption to takeeffect 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 interpretiveguidance given by the Department of Labor in its regulations,” Chief Judge Sandra L. Lynch wrote for thecourt. “On the undisputed facts, the town’s 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 fulltext 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 inorder to claim the exemption, which allows municipalities to establish a longer qualified work period ofseven to 28 days.

During the maximum 28-day work period, §207(k) allows public-safety employees to work an aggregate216 hours - a more flexible threshold than under a 40-hour workweek - before overtime pay kicks in. Thethreshold 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 wouldhave 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 thatFramingham 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 theruling as focusing too narrowly on the concept of “formal notice” when his clients never contended noticeneeded to be formal.

“We certainly felt and argued that formal notice to employees would be sufficient, but we didn’t arguethat 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 puton notice because either they were paid in accordance with the work period, and, therefore, they couldactually observe that it was being implemented or, for example, on their paycheck there could be somenotation about what happened in that period of time.”

But while Canzoneri predicted that the ruling would embolden employers seeking to implement theexemption without notice, he said its impact would be blunted, at least in Massachusetts, where theSupreme Judicial Court ruled in its 2009 City ofBoston v. Commonwealth Employment Relations Boardthat establishment of a §207(k) work period is a subject of collective bargaining.

Petrini was not so certain.

“I’m sure unions will argue that point in their favor,” he said. “But the state law cannot interfere with aprotected federal right, and §207(k) is one of the few sections of FLSA that is actually intended to protectthe employer.”

Overtime contest

Under FLSA, workers are typically entitled to overtime after working more than 40 hours in a seven-dayperiod.

In 1974, acknowledging that the cost of overtime for municipal workers was exacting a toll on cities andtowns, 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 ina 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 firepersonnel.

On April 11, 1986, the town executive in Framingham sent a memo to the police and fire chiefs, thepersonnel 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 orto 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 fourdays on duty followed by two days off. In 2000, as part of a new collective bargaining agreement, theofficers’ union negotiated a “5-3” schedule.

Since both schedules divided evenly into the town’s 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 adeclaratory judgment that the town was ineligible for the public-safety exemption because it had notproperly notified them of the work period.

Judge George A. O’Toole granted summary judgment for the town, finding that it had no obligation tonotify 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 orderfor 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 aqualified work period and contains no reference to a notice requirement.

Meanwhile, the legislative history behind the provision supported the town, the judge said, noting thatCongress had explicitly rejected a proposal that would have mandated employee agreement beforeestablishment of a §207(k) work period.

“The town argues this is indicative that not only was there no agreement required but no notice wasrequired,” Lynch said. “This reading is consistent with Congress’s goal of ‘ensur[ing] that public agencieswould not be unduly burdened by the FLSA’s overtime requirements.”

Turning to rules promulgated by the U.S. Department of Labor in implementing §207(k), Lynch observedthat the resulting regulation, § 553.224 of the Code of Federal regulations, “plainly rejected both arequirement that municipalities make a formal statement of intention [to establish a work period] and arequirement that they obtain agreement.”

That undercut the plaintiffs’ argument that §553.224’s reference to an “established” work period could beinterpreted as a notice requirement, Lynch said.

Finally, the 1st Circuit rejected the plaintiffs’ contention that a 1994 letter ruling by an administrator at theDepartment 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]nemployer must designate or otherwise objectively establish the work period ... and pay the affectedemployees with its provisions.”

Additionally, the judge pointed out, the letter ruling was in response to a specific decision by the 1stCircuit that addressed different issues.

Finally, the secretary of labor explicitly rejected the position that the plaintiffs attributed to the letterruling, stating clearly during the rulemaking process that employers need not formally declare theirintention to pay employees under §207(k), Lynch said.

Accordingly, “[the plaintiffs’] argument fails,” the 1st Circuit concluded in affirming summary judgmentfor the town.

For more information about the judges mentioned in this story, visit the Judge Center atwww./udgecenter. corn.

Eric T. Berkrnan, an attorney andformerly a reporterfor Massachusetts La~’iyers Weekly, is a freelancewriter.

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-safetyexemption 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 exemptionprovision, in its legislative history or in administrative regulations promulgated to implement it

Employers need not notify firefighters and police officers before adopting a “work period” longer than theusual 40-how workweek under the Fair Labor StandardsAct, a federal appeals court ruled recently.

In Calvao v. Town ofFrarningham, the 1st U.S. Circuit Court ofAppeals found that neither the FLSA, itslegislative history nor its implementing regulations require such notice. Section 207(k) of the law allows employers of public safely officers to adopt “work periods”of as long as 28 days as an alternative to the act’s standard 40-hour workweek (see Tab 600 of the Handbook).

The Calvao decision protects employers under the!jurisdiction of the 1st Circuit — Maine, Massachusetts,New Hampshire, Puerto Rico and Rhode Island — fromforfeiting 207(k)-exempt status even if they never formally notified their employees.

Many other employers are similarly protected. “Thesignificant majority of the case law, particularly at theappellate level, is consistent with the Calvao caseregarding the elements required to establish a 7(k) workperiod,” noted Brian P. Walter, a partner in the Los Angeles office ofLiebert Cassidy Whitmore and a memberof the Handbook’s editorial board (see box, p. 13).

Work PeriodsSection 207(k) permits state and local governments

to work law enforcement and fire protection employeesmore than 40 hours in a workweek without paying themovertime.

Instead, overtime pay for those workers is calculatedon the basis of a “work period.” A~work period is anyestablished and regularly recurring period ofwork thatis not Less than seven consecutive days nor more than 28consecutive days (29 C.F.R. §553.224(a)).

Under the section 207(k) exemption, overtime compensation is due after an employee works more than acertain number ofhours, depending on the length of thework period (see ¶611 of the Handbook). For example,for a 28-day work period, law enforcement employeesare due overtime for each hour worked over 171, and fora seven-day work period, they are due overtime for eachhour over 43.

For police and firefighters to qualify for the section207(k) exemption, their employer must “establish”a work period for them (29 C.F.R. §553.224(a); see

See Work Period, p. 13

L Dis ~btlat3 bias churns up 10% Find out bow to piotcu your self at ww~~ thompson com/thsabtht)

Public Notice Is Not Required When EmployersAdopt Longer ‘Work Periods,’ 1st Circuit Rules

U

U

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 FLSA’s section 207(k) exemption requires employers to designate a “regularly recurring” period ofworklasting anywhere from seven to 28 days in place of the regular “workweek,” the term “work period” indicates a periodof 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) exemption is not applicable). The work period is not the same thing as a pay period or an employee’s duty cycle.

U.S. Department of Labor regulations fUrther specify that:

(a) Once the beginning and ending time ofan employee’s work period is established ..., it remains fixed regardless ofhownianyhours are worked within the period. The beginning and ending of the work period may be changed, provided that the changeis 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 orgroups 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 numberof hours designated for each work-period length, as found in DOL’s (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 underthe section 207(k) exemption is one and one-half times the employee’s regular rate of pay (29 C.F.R. §778.108). fi

12 May 20101 FaIr Labor Standards Handbook (i thompsnn.com

Other Appellate Court RulingsOn the Work Period’

¶603 of the Handbook). In most state and local governments, establishing the work period is an administrativedeclaration.

•Within these limitations, the work period may be ofany length and need not coincide with the workweek, thepay period or with a particular day of the week or hourof the day (see box, p. 12).

The 1st U.S. Circuit Court ofAppeals’ ruling in Calvaov, Thwn ofFramingham (see stow, p. 12) is the mostrecent appellate court decision holding that public employers need notpublicly declare a work period in orderto take advantage of the EISA’s §207(k) exemption.While other circuit courts have not issued rulings identical to Calvao, “it is fair to say that in some Oases sucha conclusion has been a necessary corollary,” notedChristopher .1. Petrini, founding principal of Petrini &Associates P.C. in Framiogham, Mass., and an attorneyfor the defense in Calvao.

• The 6th U.S. Circuit Court ofAppeals, in Brock v.City ofCincinnati, rejected “the officers’ contention that employers must specifically mention [the§207(k)] provision in their employment policies inorder to take shelter in the rule’s safe barbor” (236F.3d 793 (6th Cit 2001)).

• The 8th U.S. Circuit Court ofAppeals found in lviii-ncr v. Hardwood that “[T]he [*207(k)] exemptionneed not be established by public declaration” (165F.3d 1222 (8th Cit ~999)).

• The 7th U.S. Circuit Court of Appeals ruled in Bare-field v. VI1L ofWinoerka that a municipal employerqualified for the §207(k) exemption, even thoughthe work schedule at issue predated the enactment ofsection 207(k) and the employer “made no declaration of intent to come under Section 7(k)” (81 F.3d704 (7th Cir. 1996)).

• The 10th U.S. Circuit Court ofAppcals wrote, inSpradling v. City of Tulsa, that a ¶‘public employermay establish a 7(k) work period even without making a public declaration, as long as its employeesactually work a regularly recurring cycle ofbetween7 and 28 days” (95 F.3d 1492 (10th Cit 1996)). i~

What Constitutes an ‘Established’ Work Period?The Calvao plaintiffs claimed their employer never

“established” a work period because it never providedthem advance notice of the designated work period. Asa result, they claimed they were owed back overtimedamages.

In deciding whether the employer properly “established” a work period, the 1st Circuit considered threethings: the text of the statute, its legisLative history andits implementing regulations.

The text of section 207(k) “does not speci1~’ that apublic employer is required to establish a work period oridentiQi’ how an employer might do so,” the court held.“Further, the text contains no requirement of notice tothe affected employee.”

Section 207(k)’s legislative history also supports aninterpretation that public notice is not required, the 1stCircuit held, noting that Congress “explicitly rejected”a proposal requiring that employers obtain &mployeeagreement 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. Departmentof Labor regulation (29 C.F.R. §553.224(a)) “plainlyrejected both a requirement that municipalities makea formal statement of intention and a requirement thatthey obtain agreement.” When DOL issued the reguladon in 1987, it noted that unlike compensatory time offagreements (see ¶560 of the Handbook), “there is no requirement in the Act that an employer formally state itsintention or obtain an agreement in advance to pay employees under section 7(k)” (52 Fed, Reg. 2024-2025).

The 1st Circuit concluded that, although “Section553.224’s reference to an ‘established’ work period isthe foundation of plaintiffs’ claim,” the rule in fact “includes no procedural steps of any kind, let alone a noticerequirement.”

The court rejected the plaintiffs’ claim and found theemployer free of back overtime liability. (Calvao v. ThwnofFrarningham, No. 09-1648, 2010 WL936553 (1st Cir.March 17, 2010)) fl

Work Period (continued from p. 12)

U

0

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(~ thompson.com May 20101 Fair Labor Standards Handbook 13

Christopher J. Petrini

,NFrom.(~jSent:

To:Subject:

Employment LawSSO [[email protected], March 23, 2010 3:00AMChristopher J. PetriniEmployment Law360: Litigation, Policy & People News

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Health Care Bill Heads To Obama’s DeskThe U.S. House of Representatives has passed legislation to expandhealth coverage for millions of uninsured Americans and address majorissues in the health care and pharmaceutical industries, includingemployer-sponsored insurance plans and approval pathways forgeneric drugs.

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certification of a class for a proposed $7 million settlement in aconsolidated action accusing the defibrillator maker and its officers ofbreaching their fiduciary duty by mismanaging the company’semployee pension plan.

‘Scandalous’ Allegations Nixed In Sedgwick AbuseSuitA New York state judge has struck mentions of a Sedgwick DetertMoran & Arnold LLP partner’s alleged affairs and drug use from thecomplaint of a former associate who says the firm Illegally fired himafter he suffered a nervous breakdown partly due to abuse at thehands of the partner.

Roto-Rooter Faces Sex Bias Class ActionA Roto-Rooter Services Co. employee has filed a putatIve nationwideclass action that alleges the plumbing giant has continually deniedpromotions to qualified women in violation of Title VII.

DC Circ. Backs Diesel Exhaust Mining Safety RulesA federal appeals court has denied a challenge to new mining safetyrules brought by the National Mining Association, which argued that therules were inadequateiy explained and unsupported by scientific data.

Scores Win In 1st Circ. On Police OT Exemption~jA federal appeals court has ruled that a city or town does not need tonotify Its police officers before taking advantage of an exemption thatallows municipaiities to pay their officers less overtime than federal law

7 - 9uid otherwise require.

Ordered To Review Safety After Worker DeathThe U.S. Environmental Protection Agency has ordered DuPont Co. to

March 23, 2010

Law Firms MentionedAkin GumpBaker & DanielsBaker & MckenzieCroweli & MoringDeutsch WiiliamsDLA PiperFriday EidredgeMoEiroy DeutschMorgan LewisNichols KasterPaul WeissPepe & HazardSedgwick DetertSheppard MuiiinWhyte HirschboeckWilliams & ConnoilyWilson SonsiniWinston & StrawnWolf Haldenstein

Companies MentionedAbbott LaboratoriesBoston ScientificChesapeake EnergyCitigroupDuPontGuidantMajor Lindsey & AfricaPfizerSaint-GobainTeliabs

Law360 SectionsAppellateBankruptcyCompetitionContractCorporate FinanceEmpioymentEnergyEnvironmentalFinancial ServicesHealthIPInsuranceintemational TradeProduct Liability

1

EMPLOYMENT LAW 360 ARTICLEMARCH 23~ 2010

Appellate Law360 Bankruptcy Law360 I Competition Law360 I Contract Law3óO CorporateFinance Law360 I Employment Law360 I Energy Law360 Environmental Law360 I FinancialServices Law360 J Health Law360 I Insurance Law360 I IP Law360 International TradeLaw360 I Product Liability Law360 I Securities Law360 I Technology Law360 I Top NewsLaw3óO

City Scores Win Tn 1st Circ. On Police OTExemption

By Mike Cherney

Law3óO, New York (March 22, 2010) -- A federal appeals court has ruled that a city or towndoes not need to notify its police officers before taking advantage of an exemption that allowsmunicipalities to pay their officers less overtime than federal law would otherwise require.

() The U.S. Court of Appeals for the First Circuit issued the ruling Wednesday, agreeing withFramingham, Mass., in a class action that alleged the town violated the Fair Labor Standards Actby not paying its officers for additional overtime.

At stake was as much as $2 million in damages, said Christopher Pefrmni, an attorney for thetown. The ruling also provided the clearest indication yet of what a municipality must do in orderto 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 morelenient time standard for overtime and, therefore, that means the municipality can unilaterallypick this,” said John Foskett, who filed an amicus brief on behalf of the Massachusetts MunicipalAssociation, the Massachusetts Chiefs of Police Association and the state’s City Solicitors andTown Counsel Association.

The FLSA requires employers to pay their employees overtime if they work more than 40 hoursin a seven-day work period. The public safety exemption, however, allows a town to pick a workperiod of between seven and 28 days and pay its officers less overtime in that period than aregular employer.

For example, municipalities do not have to pay police officers for overtime until they’ve worked171 hours in a 28-day period. That equates to about 43 hours every seven days.

Wednesday’s ruling could set up a unique legal conflict in Massachusetts, Foskett said. Last year,the state’s high court ruled that under state law, a municipality needs to collectively bargain thework 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 andsay, ‘How can we be bound on this federal issue by this state court ruling?” Foskett said. “I’vegot to believe that something like that may be percolating down the road. The two concepts seemto be at odds.”

The town argued that a one-sentence memo that was distributed internally in 1986 was sufficientto establish a work period, which in this case was 24 days, under the FLSA exemption. A districtcourt judge agreed, and the plaintiffs, 110 former and current police officers, appealed to theFirst Circuit.

Although the exemption as passed by Congress did not specifically address giving notice, theFirst Circuit held that the secretary of labor, which was authorized to promulgate regulations forthe exemption, clearly rejected a notice requirement.

The plaintiffs argued a subsequent letter ruling by an administrator at the U.S. Department ofLabor mandated a notice requirement. The First Circuit, however, rejected that argument, sayingthe letter did not mandate a notice requirement as the plaintiffs alleged.

“Even if plaintiffs’ reading of the letter were accurate, the letter’s inconsistency with the

secretary’s 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 & HollandPC.

The case is Calvao et al. v. Town of Framingham, case number 09-1648, in the U.S. Court ofAppeals for the First Circuit.

2010.03.23 Employment Law 360 Article re Calvao (2700.07, Press)

Exhibit 10

• MSSACHUSETFS

LAWYERSWwuxwww.masslawyersweekly.com

From the May 26, 2003 Massachusetts Lawyers Weekly.

Bylaw Permitting Smoking Trumped By Board OfHealth

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 alocal board of health’s ban on smoking, a Superior Court judge has ruled:

The plaintiff, a restaurant association, argued that elected officials at the Framingham TownMeeting had the power and made the choice to preempt health regulations by voting not torescind the bylaw after enactment of the regulations. -

But Judge Bonnie 1-I. MacLeod disagreed, lifting a temporary restraining order that preventedenforcement 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 ofHealth byG.L. 111, Sect 31,” wrote MacLeoct.

The judge added that the board’s regulations “have a strong presumption of validity [and] a courtmay invalidate [a] regulation only when there is no rational relation between the regulatIon and itsstated ~public health purposeY

The five-page decision is Framingliam Restaurant Association, Inc. v. Town ofFramingham, etaL, Lawyers Weekly No. 12-118-03. Subscribers to Lawyers Weekly who have registered for ourIntemet 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 mistaketo view this decision as limited to smoking issues.”

He said the opinion showed that “a health regulation supercedes a town bylaw even if the TownMeeting 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 ordinancesor bylaws, and suggested that lawyers have to look at the enabling statutes at Issue to see whatwins 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 theLegislature, its regulations trump city ordinances and bylaws that are Inconsistent.”

Robert N. Melizer of Eramingharn, counsel for the plaintiff restaurant association, said the casepresented “serious questions” about municipal law.

He contended that ‘~ppointed boards should not have the power to make decisions based ontheir own agendas while elected Town Meeting members cannot determine the reasonable limitsof regulation on smoking.”

Meter acknowledged that the Board of Health had the power to make “reasonable” regulationson smoking, but argued thatthe regulations in question “were not tailored to meet health needsonly.”

I-Ia also pointed out that “local restaurants spent lots of money to comply with existing restrictionson smoking” by puffing up enclosures and filters.

“Putting people out of business is not reasonable,” argued Mater, who suggested that manyrestaurants 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 inrestaurants 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 mademany 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 anduse of tobacco, which essentially provided that the town would go “smoke free” by prohibitingsmoking 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 thepros peotive date of the board’s 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 daythe 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 toenjoin the implementation of the regulations on the grounds that the town’s smoking bylawpreempted its health regulations.

No Injunction

After a full hearing, MacLeod found that there was little likelihood that the plaintiff would succeedon the merits md determined that the public Interest outweighed any doubtful evidence ofirreparable harm from denial of an iniunction.

2

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 relationshipbetween the regulation of smoking in restaurants and bars and the protection of the pubftc fromexposure 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 theseregulations, 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 statisticalstudies that “demonstrate no support for the notion that restaurant smoking restrictions result in areduction of revenues.”

The judge also said that “the Association’s claim that its members will lose the value of theimprovements they made in order to comply with the prior smoking regulations is likewisespeculative.”

MacLead concluded that the plaint’rl’l’s claim of harm “clearly does not outweigh the more certainharm 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.

3

Exhibit 11

Massachusetts Lawyers WeeklyJuly 23, 2007 p. 1

Continued from page 1cónstrzktion co.,Inc. vDivis on ofCapitalAssetMlinagçtnent, LawyersWeelclyNo. 10-126-(17. The full text of the ruling can be found. onour website, wwwmasslawyersweeldy.com.

Need forcomplete and .cand kl’infoAttorney General MarthaCoakley, whose

office argued onbehalfofoCAM,saidshewaipleased with the result, Tharlicularly with thecourt’s clear statenieñtthat legal advicesoughtand ±eceivedb~public o$ik s is, in fact,prd~ -tected bythe attorney-clientprivilegC.

Coaldey added that”â lawyer can ànlyfunôlion when she receives compl&te and candid’information from her client, arid this isno less - -true -when the client happens to be.a stateagency or a niunkipality’.

Plaintiff’s cqunsel Christopher W. Morog ofBoston said his client was pleased-that the SJChad clarified the extent of the privilege hirelation to. public-redordi Eequests.

A.’~ Morog ekplained~his client’s dispute”bsalways been with the way in which-tl~eagencyin this instance has included too mueh material for protection underthe claim ofattornejr-’client privilege, when in fact significant pot-lions ofthe material, in ourview, are not subjectto that pri4ilege$

In factsaidMorog,his clientofferédatmul.tiple points iii the case to i~emove the questionof the yalidity of the attorney-client priyilëge,’but was rebuffed. .

‘We intend now to request a full review ofthose docu.thents which, in our view, are. notsubject to a claim of privilege and are glad theéowt has provided all parties with the nedeè-:sary guid~nce to carry out that taslc7he said.

Christopher J. Petrini ofFraniinghthz v,khoco-wrote an amicus curiae brief on behalf of -

the City Solicitors and Town C~nnselAssod~alien, said the decision “should give’consider~able solade to- attorne~~ charged *ith-repre-.senting municipalities andpublic agencies thatthe advice we give our client will not be-subject’to disclosure pursuant to public-records,‘ecni~.ctc”

Payment brouhaha,In 200 1DCAM designaiedplaiAtiffstiffálk

CotistrdctionCo.,thc’ánd’ajbintventuie partner, as general co~tract9f. for the histbticr~st&ation ofthe “Old” Suffolk County Cóur

:thouse;nowkndwii asthe John Adams Cointhouse, in Boston. -.

During the course ofthe project as changesto conitructipn plans and’schédulerarose, theplaintiff submitted to OCAM a number o~“proposed change orders:’ which, ifacce~tedin full, would have ‘lignificantly increased.

‘H pCA~~ayments to theplaintiff

Tn April 2004, after reviewing the proposalswith its architects and consultant~,DCAMde-,nied the requested payments.-

The plaintiff later served two requests undei the pàblic records law, CIL.c. 66,fl0’(a).Among other things, the plaintiff aske I to-“inspect and review all documents of everykind” related to the project, inchiding”all doçuments between and among’[the executiveoffice foradministration arid finance] and/orDCAM, their counsel, agents, entployees,consultants and/or counsel for other entitiesregardmg this request’

Over the next U thdhtl*,DCAMpioduCeda large volume of material to the;pla4ntiff,butcreatedan evolvinglog that identified 189 doc

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

Public privUØge~.appeal, the~

torney-dient r:,public entitiená4.

“The nec,essityi‘mental entities ai..from the realities of-modern governnient’said Marshall.

~‘Public eiñployees ritust routinely seek advice from counsel oó how to meet their obligations to the public:’ she added.”It isin thepublici interest -that.theybe able to do. so incircumstances that encourage complete can4or, without inhibitions arising from the featthat what they communkate willbe.disdosedto the world’, --.,~ - - ...

Next addressing the plaintiffs argumentthat the ~ubliC records statute nonètheléssabrogates the attorney-client privilege f&.public entities subject to thatstatute,thechiefjustice fOund the plaintiff’s reliaiice,on Gei-

— :1 ii’

Sict attórnèy-d iént privi legEprotects DCAMera! Sec misplaced.•-“[T]h~eis no merit in [the plaintiff’s] prem

- -- ise thatfor purpoáes of,cqnstrüing-the public

- records law, the attorney-client -privilege and-the work-product doctiineare’virwallyindistinguishable” saictMarshall The two doctimes are readily differentiated”

The chief justice noted that the attorneydienfliitilege “has. deep rootwih the common im~ and is flnnly established.i≤ a cr16-

- cal.-cbmponcnt of the rule -of l~*. in ourdemocratic society’ wlnlethe work productdoctrine is merely a tool of judicial adnunistration with no intrinsic value outside thelitigation arena

‘The chstmetly difkrent social value as-

acorn lar signed to the two doctnninsa reflected miheelin1~ ec fact that the attorney client privilege, which

belongs to the client is with rare.çz&pbons in..~,, violable, survivingeyen the clint’s death” said

Marshall “AttorneyWork pzod~ict,’ainnunu-’

e mty for the attorney on the other hand, is discoverable on a showing ofneed. -

,liecause the withdrawal of the aftcrnet~tpnvilege wouldbe”extraordinary”m any

- mstance the court declined to employthe conventions ofstatutory construction ma

:;..11a echanistic way. that upends the-coxn~jiOjj law

1 fundamentallymakes-no-sense~

Finally the court rejected the plaintiff’s us-- -. ‘sertion that allowing the $torne~’-dlientjii~J

- ilege tcrtrump the public iecords statute wduldboth contravenetheiegislature’spolicyfavor.ing open government and encourage pqblic-officials to misuse the privilege; - -

- ‘Attorneys andjizdges are free, aS always, totest the sufficiency ofthedaim-ofprivilege’said--Marshall, adding that”[i]n an era In Whichpublicentities are regularly subject to liuigatiOn anddiscoverybypiivatepa±ties,respondingtodoc--ument requests anddifferentiatingwn6figdis- -

coverable and undiscoverable material are routine j~arts of doing buiihes~’ - - -.

- client privilEe. --

The plaittiffevé-- Superior Court se~jand review of thei-- E~cognizingtl*itorney-dilent p”

- sphere ha4 never t- courts,Judge Mit’-questiyn to the S.

Eric TBerkmaftforniér!ya-reporterforMassachwesLäuyersWeekl,~ ü afreelance writerQ

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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 processBy John Ellement and Christine Legere, Globe Staff I Globe Correspondent I July 10, 2010

The state’s high court said yesterday that local governments can hire companies for public works projects even if the firmsmisrepresented 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 highschool. 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] taxpayersgot 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 createdby 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 Bostonattorney 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 inthe winning bidder’s 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 court’s decision and will also continue our efforts to ensure an open and fair biddingprocess 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 eventhough it was discovered that the firm had provided fraudulent information to qualify for bidding. The company took credit for aNorth 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 thatHanover end its contract with Callahan and accept the next qualified bidder. Town officials refused, saying they tookCallahan’s misdeeds into account.

“We’re pretty happy that the outcome shows we followed the process,” Chris Martin, chairman of the High School BuildingCommittee, said yesterday.

Writing for the court, Justice Ralph W. Gants said Hanover’s actions were reasonable and not the result of official corruption orfraud. 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 town’s prequalification committee actedcorruptly in deciding to prequalify Callahan, there is unrefuted evidence that the committee did not act in reliance on any of thealleged 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 beenmoving 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 havethe 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 haspitched 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.

‘We’re 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/~’~~/2Ol0/07/ 1 0/sjcgives_municipalities_discretion_i11PitPr0S5?m0~’F9~’~5/2OIO