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GIs#: 1633 COMMONWEALTH OF MASSACHUSETTS
Map: 41
Block: CITY OF SALEM
Lot-. 0154
Category: 104 New Two family
Permit# 633 BUILDING PERMIT
Project# JS-2606-1306
Est. Cost: $110,000.00
Fee Charged: $1,100.00
Balance Due: $.00 PERMISSION IS HEREBY GRANTED TO:
Const.Class: Contractor: License:
Use Group: EMERY CONSTRUCTION CORP
Lot Size(sq. ft.): 23730'
Zoning: R2 Owner: CLOSE COUSINS LLC
Units Gained: —Applicant: EMERY CONSTRUCTION CORP
Units Lost; AT. 0001 COUSINS STREET
Dig Safe#:
ISSUED ON. 07-Feb-2006 AMENDED ON. EXPIRES ON: 07-Aug-2006
TO PERFORM THE FOLLOWING WORK:
633-06(9 COUSINS STREET UNIT A)CONSTRUCT NEW HOME MODULAR TJS
POST THIS CARD SO IT IS VISIBLE FROM THE STREET
Electric Gas Plumbing Building
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THIS PERMIT MAY BE REVOKED BY THE CITY OF SALEM UPON VIOLATION OF ANY OF ITS
RULES AND REGULATIONS. �
Signature
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Fee Type: Receipt No: Date Paid: Check No: Amount:
BUILDING - REC-2006-001893 07-Feb-06 6317 $1,100.00
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GeoTMS®2006 Des Lauriers Municipal Solutions,Inc.
VsQVE AD
CITY OF SALEM
BUILDING PERMIT
Certificate No: 633-06 Building Permit No.: 633-06
Commonwealth of Massachusetts
City of Salem
Building Electrical Mechanical Permits
This is to Certify that the RESIDENCE located at
-----------------------------------------------------
Dwelling Type
0001 COUSINS STREET in the CITY OF SALEM
------------------------------------------------------------------------------ -----------------------------------------------------------------------
Address TowrdCity Name
IS HEREBY GRANTED A PERMANENT CERTIFICATE OF
OCCUPANCY
(9 COUSINS STREET UNIT A NEW MODULAR HOME)
This permit is granted in conformity with the Statutes and ordinances relating thereto, and
expires unless sooner suspended or revoked.
Expiration Date
Issued On:Fri Jul 20,2007 WA - -----------
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LAW OFFICES OF
CHRISTOPHER M. WELCH
THIRTY-TWO CHURCH STREET
SALEM, MASSACHUSETTS 01970
TELEPHONE(978)745-0500
FACSIMILE(978)745-6606
NEWBURYPORT OFFICE
CHRISTOPHER M.WELCH 24 CENTER STREET
JOSEPH J.WELCH NEWBURYPORT,MASSACHUSETTS 01950
JAMES L.ROGAL TELEPHONE(978)465-5022
Of Counsel FACSIMILE(978)465-3506
E.DOUGLAS BOLICK
September 22, 2000
HAND DELIVERED
John Keenan, Esq.
222 Essex Street
Salem, Massachusetts 01970
Re: One Cousins Street Realty Trust v. City of Salem,
Essex Superior Court, Civil Action No. 00-886B
Dear John:
Pursuant to Superior Court Rule 9A, I am serving you with the following documents in
the above-referenced civil action:
1. Motion to Amend Complaint;
2. Affidavit in Support of Motion to Amend Complaint; and
3. Memorandum of Law in Support of Motion to Amend Complaint;
4. Amended Complaint; and
5. Certificate of Service.
Under Rule 9A, you have ten (10) days from receipt of these documents to serve this
office with an Opposition.
Sin rely,
JJarne . Rogal
JLR/wp ��
Enc. l
CERTIFICATE OF SERVICE
I, James L. Rogal, attorney for the plaintiff, One Cousins Street Realty Trust,
hereby certify that I served on John D. Keenan, Esq., City Solicitor, 222 Essex Street,
Salem, MA 01970, attorney for the defendant, City of Salem, by hand delivery, copies of
the following documents on September 22, 2000:
1. Motion to Amend Complaint;
2. Affidavit in Support of Motion to Amend Complaint;
3. Memorandum of Law in Support of Motion to Amend Complaint; and
4. Amended Complaint.
s L. Rogal
COMMONWEALTH OF MASSACHUSETTS
ESSEX, ss SUPERIOR COURT
CIVIL ACTION NO. 00-886B
ONE COUSINS STREET REALTY )
TRUST, Donna Colitz, Trustee, )
Plaintiff )
VS. )
CITY OF SALEM, Acting by Robert W. )
Turner, Chief of Fire Department; and )
Peter Strout; Building Inspector, )
Defendant )
PLAINTIFF'S MOTION TO AMEND COMPLAINT
The plaintiff, One Cousins Street Realty Trust, moves to amend the
Complaint, pursuant to M.R.C.P. Rule 15(a), to add two Counts to the Complaint
(1) declaratory relief; and (2) Wrongful Demolition of a Building, Pursuant to
M.G.L. c. 139, § 2, on the grounds set forth in the Affidavit and Memorandum of
Law submitted herewith.
ONE COUSINS STREET
REALTY TRUST
y its attorney
Ja L. Rogal, Esq.
B 0 #424930
L w Offices of
ristopher M. Welch
2 Church Street
Salem, MA 01970
(978) 745-0500
COMMONWEALTH OF MASSACHUSETTS
ESSEX, ss SUPERIOR COURT
CIVIL ACTION NO. 00-0886B
ONE COUSINS STREET REALTY )
TRUST, Donna Colitz, Trustee, )
Plaintiff )
VS. )
CITY OF SALEM, Acting by Robert W. )
Turner, Chief of Fire Department; and )
Peter Strout, Building Inspector, )
Defendant )
AFFIDAVIT IN SUPPORT OF
MOTION TO AMEND COMPLAINT
I, Frederic Hutchinson, on oath do hereby depose and say the following based on
personal knowledge and belief:
1. I am the property manager of the land and buildings at 1-11 Cousins
Street, Salem, Massachusetts ("Premises"), for the plaintiff, One Cousins Street Realty
Trust ("Trust'), which is the subject matter of this action. I am familiar with the events
and transactions that form the basis of this litigation.
2. 1 believe that the City has wrongfully decided to demolish the buildings on
the Premises and is continuing to demolish the buildings and therefore, the plaintiff is
entitled to damages.
3. 1 understand that under M.G.L. c. 139, § 1, the City, if it determines a
building is dangerous, it must notify the owner and conduct a hearing. After the hearing,
if the City determines that the building is in fact dangerous, it can order that it be
demolished. An attested copy of the order must be served on the owner. To the best of
my knowledge no such order has been served on the owner or me.
Signed under the pains and penalties of perjury this 19th day of September,
2000.
Frederic Hutchinson
COMMONWEALTH OF MASSACHUSETTS
ESSEX, ss SUPERIOR COURT
CIVIL ACTION NO. 00-886B
ONE COUSINS STREET REALTY )
TRUST, Donna Colitz, Trustee, )
Plaintiff )
VS. )
CITY OF SALEM, Acting by Robert W. )
Turner, Chief of Fire Department; and )
Peter Strout, Building Inspector, )
Defendant )
MEMORANDUM OF LAW IN SUPPORT OF
MOTION TO AMEND COMPLAINT
Statement of the Case
This action was originally filed to seek injunctive relief to prevent the
defendant, City of Salem, from demolishing buildings on the plaintiffs real estate
at 1-11 Cousins Street, Salem, Massachusetts ("Premises'). On May 23, 2000,
after hearing, this Court (Welch, J.) denied the plaintiffs Motion for Preliminary
Injunction. Based on M.G.L. c. 139, § 1, when the original complaint was filed no
attested order of demolition required by § 1 had been served on the plaintiff.
Therefore, a claim for damages under M.G.L. c. 139, § 2 was premature. To
date, no § 1 order has been served on the plaintiff. The purpose of the plaintiffs
attempted amendment to the Complaint is to obtain a declaration from this Court
that either a § 1 order is a pre-requisite to the plaintiff seeking damages under
§ 2, or that such an order is superfluous because the City has already
commenced demolition. In either case, the plaintiff seeks to amend the
complaint to add a count for damages under § 2.
Arciument
Rule 15(a) allows a party to amend the complaint on leave of the Court.
Although it is within the Court's discretion to allow an amendment, amendments
should generally be allowed unless the party seeking amendment is acting in bad
faith, will cause undue delay, prejudice the other party or there is no merit to the
new claims. Manfrates v. Lawrence Plaza Ltd. Partnership, 41 Mass. App. Ct.
409, rev. denied, 423 Mass. 1114 (1996); DiVenuti v. Reardon, 37 Mass. App.
Ct. 73 (1994). For the following reasons, this Court should allow the plaintiff to
amend the Complaint.
The plaintiff seeks to amend the complaint based on its belief that the
buildings on the Premises are not dangerous and should not be subject to
emergency demolition by the City. Generally, Massachusetts General Laws,
Chapters 139 and 143, and the regulations promulgated by the Department of
Public Safety, set out the procedures for demolishing dangerous buildings.
Chapter 139 was originally enacted in 1855. Section 1 requires that the
Aldermen (City Council) give written notice to an owner of a dangerous building
and then conduct a hearing before the building can be demolished. M.G.L.
c. 139, § 1.' See Worcester v. Eisenbeiser, 7 Mass. App. Ct. 345, 348
(1979)(demolition of building was wrongful where City did not comply with
procedural requirements of c. 139).
Apparently to avoid the cumbersome process in Chapter 139, the
Legislature enacted Chapter 143, Section 10, which states:
An owner, lessee or mortgagee in possession aggrieved by such
order may have the remedy prescribed by section two of
chapter one hundred and thirty-nine; provided that no
provision of said section two shall be construed so as to hinder
delay or prevent the local inspector acting and proceeding
under section nine (demolition)....
M.G.L. c. 143, § 10. Section 10 was obviously enacted so that in cases of
emergencies municipalities could act quickly to protect public safety.. Despite
the intent to streamline the process for demolition, the statutes still provide the
remedy under Chapter 139 for an aggrieved owner.
The remedy is contained in M.G.L. c. 139, § 2, which states in part:
1 M.G.L. c. 139, § 1, states:
The aldermen or selectmen in any city or town may, after
written notice to the owner of a bumt, dilapidated or
dangerous building or other structure, or his authorized agent,
or to the owner of a vacant parcel of land, and after a hearing,
make and record an order adjudging it to be a nuisance to the
neighborhood, or dangerous, and prescribing its disposition,
alteration or regulation. The city or town clerk shall deliver a
copy of the order to an officer qualified to serve civil process,
who shall forthwith serve an attested copy thereof in the manner
prescribed in section one hundred and twenty-four of chapter one
hundred and eleven, and make return to said clerk of his doings
thereon.
A person aggrieved by such order may appeal to the superior court
for the county where such building or other structure is situated, if,
within three days after the service of such attested copy upon him, he
commences a civil action in such court....
M.G.L. c. 139, § 2. In the present case, the City did not comply with c. 139, § 1
by serving the plaintiff with a notice of demolition, conducting a hearing and
serving an attested copy of the order of demolition on the plaintiff. Consequently,
the plaintiff has not been able to pursue its rights to file a claim with this Court
under § 2. Without any possibility of prejudice to the City or cause for delay to
the demolition of the buildings on the Premises, an amendment to the Complaint
should be allowed so that the plaintiff can pursue its rights under Chapter 139.
Conclusion
For the foregoing reasons, the plaintiff respectfully requests that the Court
grant its Motion to Amend Complaint.
ONE COUSINS STREET
REALTY TRUST
;itsttorney
. Rogal, Esq.
24930ices of
pher M. Welch
32 Church Street
Salem, MA 01970
(978) 745-0500
COMMONWEALTH OF MASSACHUSETTS
ESSEX, ss SUPERIOR COURT
CIVIL ACTION NO. 00-8868
ONE COUSINS STREET REALTY )
TRUST, Donna Colitz, Trustee, )
Plaintiff )
VS. )
CITY OF SALEM, Acting by Robert W.
Turner, Chief of Fire Department; and )
Peter Strout, Building Inspector, )
Defendant )
AMENDED COMPLAINT
Parties
1. The plaintiff, One Cousins Street Realty Trust, Donna Colitz,
Trustee, is a Massachusetts nominee trust, under a Declaration of Trust dated
December 16, 1998 and recorded with the Essex South District Registry of
Deeds in Book 15337, Page 297, with a usual place of business at 1-11 Cousins
Street, Salem, Massachusetts.
2. The defendant, City of Salem is a municipal corporation acting by
and through its Building Inspector, Peter Strout, and its Fire Chief, Donald W.
Turner.
Facts
3. The plaintiff is the owner of the land and buildings at 1-11 Cousins
Street, Salem, Massachusetts ('Premises").
4. The Premises is a large former leather tanning factory
approximately eighty years old. It is three stories tall and it is primarily a wooden
structure. It is located in a mostly residential area.
5. When the Trust purchased the Premises in 1998 there was a
leather processing business that used only a small portion of the Premises. At
that time most of the heavy equipment used in the leather tanning business had
been removed. There was a great deal of trash and debris left behind. The fire
alarm and sprinkler system was not functioning. In addition, the elevator was not
functioning and there was no working electricity in much of the building.
6. Over the last two years the plaintiff repaired the fire alarm system,
cleaned up the interior, removed much of the debris and performed work to
secure the building. Presently, the building is locked up and there is a fence
around the perimeter. Since 1998, there has been no vandalism or any breakins.
7. The plaintiff repaired the boiler in the Premises and the entire
building is heated. In addition, it installed a working fire alarm system.
8. Although there is no active business conducted in the Premises,
the plaintiffs representatives regularly work inside to clean out and maintain the
building. The Premises is in no way abandoned or open to the weather.
9. On January 25, 2000, the plaintiff received a letter, through
counsel, that the Building Inspector considered the building to be unsafe and a
fire hazard.
10. After the plaintiff received this letter the plaintiff took steps to
improve the condition of the structure, including, installing a dry system and
cleaning up the debris and trash inside the building.
11. The January 25, 2000 letter states that if the plaintiff did not
respond to the letter an action would be filed in Salem District Court. The Trust
has not been served with a summons to appear in the Court.
12. An article appeared in The Salem Evening News on May 17, 2000
which stated that the City was taking steps to come in and demolish the
Premises. A copy of the article is attached hereto as Exhibit B. In addition,
various representatives of the City have entered the Premises during the last few
days, without the permission of the Trust.
13. On or about May 15, 2000, Robert W. Turner, the Fire Chief
determined that the Premises was a fire hazard and should be demolished. It is
on information and belief that the City intends to start demolition of the Premises
on May 22, 2000.
14. Although the building is not in ideal condition, it is structurally
sound.and is in no present danger of collapsing. It is also not an exceptional fire
hazard because of the new sprinkler system and the securing of the building.
15. The plaintiff has hired a structural engineering firm called Rene
Mugnier Associates, Inc. to assess the integrity of the building and to determine
whether it is truly a fire hazard. The structural engineers have determined that
the buildings on the Premises are not in danger of imminent collapse.
se.
P
17. Although the City has done some work on the buildings, including
shutting off utilities, removing two tanks and removing the exterior siding, the
buildings are still standing.
18. The building contains valuable equipment, including the boiler and
certain machinery that can be removed and sold. It will take the plaintiff two to
four weeks to remove this property.
19. The plaintiff will suffer irreparable harm that cannot be
compensated by money damages if the City is allowed to demolish the building
immediately, including, but not limited to, the loss of a potentially valuable
building, the loss of the boiler and other machinery, and the recent improvements
made to the structure.
18. The building was in worse condition at least in January of 2000,
than it is now, but did nothing to demolish it until now. Therefore, the real harm
the plaintiff will suffer if demolition commences outweighs the speculative harm
described by the City. Again, the plaintiff will demolish the building at its own
cost if its engineers determine that the structure is indeed unsafe or structurally
unsound.
19. The defendant has not complied with M.G.L. c. 139,
§ 1, by serving
the plaintiff with a notice of demolition, conducting a hearing before the City
Council or serving an Order following the hearing on the plaintiff.
20. The plaintiff has suffered damages as a result of the defendant's
wrongful demolition of the buildings on the Premises.
WHEREFORE, the plaintiff demands judgment against the defendant and
respectfully requests the following relief:
COUNT
(Injunctive Relief)
21. The plaintiff reasserts and incorporates by reference paragraphs 1
through 20.
22. The plaintiff will suffer irreparable harm that cannot be
compensated by money damages if the City is allowed to demolish the building
immediately, including, but not limited to, the loss of a potentially valuable
building, the loss of the boiler and other machinery, and the recent improvements
made to the structure.
23. The plaintiff has a reasonable likelihood of success on the merits of
this matter because the City has wrongfully demolished the buildings on the
Premises where there is no reasonable danger to the surrounding neighborhood.
WHEREFORE, the plaintiff demands judgment against the defendant and
requests the following relief:
1. Grant the plaintiff a temporary restraining order to enjoin the
defendant and its employees, appointees, or representatives from
entering on and demolishing the building at 1-11 Cousins Street,
Salem, Massachusetts;
2. Grant the plaintiff a preliminary injunction to enjoin the
defendant and its employees, appointees, or representatives from
entering on and demolishing the building at 1-11 Cousins Street,
Salem, Massachusetts for up to sixty (60) days from the date of the
Order; and
3. Grant any further relief the Court shall deem appropriate.
COUNT II
(Declaratory Judgment)
24. The plaintiff reasserts and incorporates by reference paragraphs 1
through 23.
25. The defendant has not complied with M.G.L. c. 139, § 1, by serving
the plaintiff with a notice of demolition, conducting a hearing before the City
Council or serving an Order following the hearing on the plaintiff.
WHEREFORE, the plaintiff demands judgment against the defendant and
requests the following relief:
1. A declaration that the defendant has not complied with M.G.L.
c. 139, § 1 and that the City must take action to comply with said § 1, or
allow the plaintiff his remedy under M.G.L. c. 139, § 2; and
2. Grant any other relief the Court shall deem appropriate.
COUNT III
(Claim Under M.G.L. c. 139, § 2)
26. The plaintiff reasserts and incorporates by reference paragraphs 1
through 25.
27. The defendant wrongfully demolished the buildings on the Premises
without legal or factual justification.
WHEREFORE, pursuant to M.G.L. c. 139, § 2, the plaintiff demands a jury
trial in this Court and money damages, including his costs and attorney's fees..
ONE COUSINS STREET
REALTY TRUST
*978)
ney
ogal, Esq.
930
s of
r M. Welch
Street
01970
0500
LAW OFFICES OF
CHRISTOPHER M. WELCH
THIRTY-TWO CHURCH STREET
SALEM, MASSACHUSETTS 01970
TELEPHONE(978)745-0500
FACSIMILE(978)745-6606
NEWBURYFORT OFFICE
CHRISTOPHER M.WELCH 24 CENTER STREET
JOSEPH J.WELCH NEWBURYPORT,MASSACHUSETTS 01950
JAMES L.ROCAL TELEPHONE(978)465.5022
Of Counsel FACSIMILE(978)465-3506
E.DOUGLAS BOLICK
September 22, 2000
HAND DELIVERED
John Keenan, Esq.
222 Essex Street
Salem, Massachusetts 01970
Re: One Cousins Street Realty Trust v. City of Salem,
Essex Superior Court, Civil Action No. 00-886B
Dear John:
You will find enclosed a copy of the following documents in the above-referenced civil
action:
1. Plaintiffs Emergency Motion for Reconsideration of Motion for Temporary
Restraining Order;
2. Affidavit of Frederic Hutchinson; and Affidavit of Rene Mugnier.
Sinc ely,
mes L Rogal
JLR/wp
Enc.
LAW OFFICES OF
CHRISTOPHER M. WELCH
THIRTY-TWO CHURCH STREET
SALEM,MASSACHUSETTS 01970
TELEPHONE(978)745-0500
FACSIMILE(978)745.6606
NEWBURYPORT OFFICE
CHRISTOPHER M.WELCH 24 CENTER STREET
NEWBURYPORT,MASSACHUSETTS 01950
JAMES L..AOGAL
JOSEPH WELCH TELEPHONE(978)465-5022
FACSIMILE(978)465-3506
Of Gose!
E.DOUGLAS BOLICK
September 22, 2000
Clerk—B Session
Essex Superior Court
High Street
Newburyport, Massachusetts 01950
Re: One Cousins Street Realty Trust v. City of Salem
Civil Action No. 00-886B
Dear Sir or Madam:
You will find enclosed for filing the following documents for the hearing scheduled for
Thursday, September 28, 2000 at 2:00 PM:
I. Plaintiff's Emergency Motion for Reconsideration of Motion for Temporary
Restraining Order;
2. Affidavit of Frederic Hutchinson in Support of Plaintiffs Emergency Motion for
Reconsideration of Motion for Temporary Restraining Order
3. Affidavit of Rene Mugnier in Support of Plaintiffs Emergency Motion for
Reconsideration of Motion for Temporary Restraining Order; and
4. Certificate of Service.
Since ely,
Regal
JLR/wp
Enc.
C: John Keenan, Esq., City Solicitor
LAW OFFICES OF
CHRISTOPHER M. WELCH
THIRTY-TWO CHURCH STREET
SALEM,MASSACHUSETTS 01970
TELEPHONE(978)745-0500
FACSIMILE(978)745-6606
NEWBURYPORT OFFICE
CHRISTOPHER M.WELCH
24 CENTER STREET
JOSEPH J.WELCH NEWBURYPORT,MASSACHUSETTS 01950
JAMES L.ROGAL
TELEPHONE(978)465-5022
FACSIMILE(978)465-3506
Of CouKef
E.DOUGLAS BOLICK
September 22,2000
HAND DELIVERED
John Keenan, Esq.
222 Essex Street
Salem, Massachusetts 01970
Re: One Cousins Street Realty Trust v. City of Salem,
Essex Superior Court, Civil Action No. 00-886B
.ar John:
You will find enclosed a copy of the following documents in the above-referenced civil
,,tion:
1. Plaintiff s Emergency Motion for Reconsideration of Motion for Temporary
Restraining Order;
2. Affidavit of Frederic Hutchinson; and Affidavit of Rene Mugnier.
Sine ely,
mes L Rogal
JLR/wp
Enc.
CERTIFICATE OF SERVICE
I, James L. Rogal, attorney for the plaintiff, One Cousins Street Realty Trust,
hereby certify that I served on John D. Keenan, Esq., City Solicitor, 222 Essex Street,
Salem, MA 01970, attorney for the defendant, City of Salem, by hand delivery, copies of
the following documents on September 22, 2000:
1. Plaintiffs Emergency Motion for Reconsideration of Motion for Temporary
Restraining Order;
2. Affidavit of Frederic Hutchinson in Support of Plaintiffs Emergency Motion
for Reconsideration of Motion for Temporary Restraining Order; and
3. Affidavit of Rene Mugnier in Support of Plaintiffs Emergency Motion for
Reconsideration of Motion for Temporary Restraining Order.
m� ogal
V
COMMONWEALTH OF MASSACHUSETTS
ESSEX, ss SUPERIOR COURT
CIVIL ACTION NO. 00-886B
ONE COUSINS STREET REALTY )
TRUST, Donna Colitz, Trustee, )
Plaintiff )
VS. )
CITY OF SALEM, Acting by Robert W. )
Turner, Chief of Fire Department; and )
Peter Strout, Building Inspector, )
Defendant )
)
PLAINTIFF'S EMERGENCY MOTION FOR RECONSIDERATION OF
MOTION FOR TEMPORARY RESTRAINING ORDER
The plaintiff, One Cousins Street Realty Trust, moves for reconsideration
of its Motion for Temporary Restraining Order, to enjoin the defendant, City of
Salem and its employees, appointees and representatives from entering and
demolishing the building at 1-11 Cousins Street, Salem, Massachusetts, on the
grounds set forth in the Affidavit submitted in support hereof.
WHEREFORE, the plaintiff respectfully requests the following relief:
1. Grant the plaintiff a temporary restraining order to enjoin the
defendant and its employees, appointees, or representatives from
entering on and demolishing the building at 1-11 Cousins Street,
Salem, Massachusetts;
2. Grant the plaintiff a preliminary injunction to enjoin the
defendant and its employees, appointees, or representatives from
entering on and demolishing the building at 1-11 Cousins Street,
Salem, Massachusetts for up to sixty (60) days from the date of the
Order; and
3. Grant any further relief the Court shall deem appropriate.
ONE COUSINS STREET
REALTY TRUST
By its attorney
L. Rogal, Esq.
BBO 424930
Law ff'ices of
Chri topher M. Welch
32 hurch Street
alem, MA 01970
(978) 745-0500
COMMONWEALTH OF MASSACHUSETTS
ESSEX, ss SUPERIOR COURT
CIVIL ACTION NO. 00-0886B
ONE COUSINS STREET REALTY )
TRUST, Donna Colitz, Trustee, )
Plaintiff )
VS. )
CITY OF SALEM, Acting by Robert W. )
Turner, Chief of Fire Department; and )
Peter Strout, Building Inspector, )
Defendant )
AFFIDAVIT IN SUPPORT OF EMERGENCY MOTION FOR RECONSIDERATION OF
MOTION FOR TEMPORARY RESTRAINING ORDER
I, Frederic Hutchinson, on oath do hereby depose and say the following based on
personal knowledge and belief:
1. I am the property manager of the land and buildings at 1-11 Cousins
Street, Salem, Massachusetts ("Premises"), for the plaintiff, One Cousins Street Realty
Trust ('Trust'), which is the subject matter of this action. I am familiar with the events
and transactions that form the basis of this litigation.
2. Reference should be made to the original Affidavit in Support of Motion for
Temporary Restraining Order filed with this Court. This Affidavit is intended to
supplement the information in that Affidavit.
3. On May 23, 2000, this Court, Welch, J., denied the plaintiffs Motion for
Preliminary Injunction, which was an attempt to stop the imminent demolition of the
Premises.
4. Since that date, the City, through its Building Inspector, Peter Strout, and I
entered into negotiations for me to perform the demolition of the buildings. The City
agreed to allow the Trust to perform the demolition. See copy of letter dated June 23,
2000 from John D. Keenan to James L. Rogal attached hereto as Exhibit A. In my
opinion the City imposed unrealistic deadlines to complete the work. The City wanted
the demolition completed by August 1, 2000. When I did not meet the City's deadlines,
the City took over the demolition and would not let me continue. See letter dated July
20, 2000 from John D. Keenan to James L. Rogal attached hereto as Exhibit B.
5. The buildings are still standing although some work has been completed.
The most significant work has been the removal of the asbestos shingles on the exterior
of the main building.
6. The Trust still wants to do the demolition because it can do it at a much
lower cost than if is performed by the City. The City has to pay prevailing wages and it
has no motive to keep costs down because all costs are passed on to the Trust.
7. On August 22, 2000, the Trust hired Rene Mugnier Associates, Inc.,
structural engineers, to inspect the buildings. See Affidavit of Rene Mugnier submitted
herewith. Mr. Mugnier's opinion is that the buildings are not in imminent danger of
collapse.
8. The Trust will suffer irreparable harm that cannot be compensated by
money damages if the City is allowed to demolish the building immediately, including,
but not limited to, the loss of a potentially valuable building, the loss of the boiler and
other machinery, and the recent improvements made to the structure.
Signed under the pains and penalties of perjury this 19th day of September,
2000.
Freded utchin on
EXHIBIT A
06/23%00 FRI 12:55 FAX 9787400072 JOHN D HEENAN Z001/007
a
WILLIAM J.LUNDREGAN CIN OF SALEM - MASSACHUSETTS
City Solicitor Legal Department JOHN D.KEENAN
93 Washington Street Assistant City Solicitor
Tal:970-741.3688 51 Washington Sweet Salem, Massachusetts 07970 Eo Washington Street
Fax:978-741.8110 Tel:978-741.4453
Fax:978-74o-0o72
VIA FAX& FIRST CLASS MAIL: 978.745.6606
James L. Rogal, Esq. June 23, 2000
32 Church Street
Salem, Massachusetts 01970
RE: Demolition of Richard's Leather Company
1-11 Cousins Street, Salem, MA
Dear Attorney Rogal:
As you are aware, the above captioned property has been declared an unsafe
and dangerous structure pursuant to 780 CMR 121.0. The condition of said
Prop"warrants immediate demolition, as was confirmed by Judge Howard
Whitehead. Through you and your client's discussions with Building Inspector
Peter Strout, it is my understanding that the owner is now willing to demolish the
building as requested by the Building Inspector.
Pursuant to 780 CMR 121, the owner must "employ sufficient labor speedily to . .
. remove [the building]." This process should proceed forthwith in accordance
with 780 CMR 121 (unsafe structures) and 780 CMR 112.0 (demolition of
structures). It is further understood that the demolition will be completed p ed on Or
before August 11, 2000.
Thank you for your attention to this matter. Please do not hesitate to call with
any questions.
Very best regards,
Jo . Keenan,
As City Solicitor
En
cc. Peter Strout, Bldg, Inspector
Robert Turner, Fire Chief
06/23'00 FRI 12:35 FAX 9787400072 JOHN D KEENAN 2002,007
760 CMR: STATE BOARD OF BUILDING REGULATIONS AND STANDARDS
ADMINISTRATION
provisions of 780 CMA in case of any false the necessary refraining walls and fences in
statement or misrepresentation of fact in the accordance with the provisions of 780 CMR 33.
application or on the plans on which the permit or
approval was based. 780 CMR 113.0 CONDMON5 OF PERMIT
111.13 Approval in 113.1 Payment of fees: A permit shall not be issued
pp part: The building official may until the fees prescribed in 780 CMR 114.0 have
issue a permit for the construction of foundations or been paid.
any other part of a building or structure before the
construction documents for the whole building or 113.2 Compliance with code:The permit shall be a
structure have been submitted, provided that license to proceed with the work and shall not be
adequate information and detailed statements have construed as authorit
been filed complying with all of the pertinent Y violate,cancel or set aside
requirements of 780 CMR. Work shall be limited to or any of the provisions off 780 CMR or any other Is regulation, except as specifically y
that work approved by the partial approval and
specifically stipulated by
further work shall proceed only when the building modification or legally granted variation as
permit is amended in accordance with 780 CMR described in the application.
110.13. The holder of such permit for the
foundation 113.3 Compliaeree with permit: All work shall
other pans e building or structure to the approved application and the
shall proceeded at the holdeders own risk with the
building operation and without assurance that a approved construction documents for which the
p
ermit for the entire building or saw permit has been issued and any approved
rause will De
d
amenments t0 the owed application
granted. PPror the
approved construction documents.
111.14 Posting of permit: A true copy of the 113.4 Compliance with site Ian: All new work
building permit shall be kept on the site of i
trct
shall be located s ! in accordance with the
operations, open to public inspection during the y
entire time of prosecution of the work and until the approved site plan.
completion of the same. 780 CMR 114.0 FEES
111.15 Notice of start: At least 24-hour notice of 114.1 General: A permit to begin work for new
start of work under a building permit shall be given construction,alteration,removal,demolition or other
to the building official, building operation shell not be issued until the fees
Prescribed in 780 CMR 114.0 shall have been paid
780 CMR 112.0 DEMOLITION OF to the department of building inspection or other
SMUG URES authorized agency of the jurisdiction, nor shall an
112.1 Service connections: Before a bu!lMrtg or amendment to a Permit necessitating an additional
fee be approved until the additional fee has been
structure is demolished or removed, the owner or paid
agent shell notify all utilities having service
connections within the structure such w water, It 4,2 Special fees: The payment of the fee for the
electric,gas,sewer and other connections. A permit construction, attrition, removal or demolition for
., to demolish or remove it building or srraclure shall all work done in connection with or concurrently
not ie issued until a release is resobtpective
from the with the work contemplated by a building permit
utilities, strand that their respective service shah not relieve the applicant or holder of the permit
connections and appurtenant equipment, such as
meters from the Payment ofother fees that are prescribed by
turd regulators,have been removed or sealed
and plugged in a safe manner, law or ordinance for water taps,sewer Connections,
All debris shall be disposed of in accordance with electrical permits, erection of signs and display
780 CMR 111.5, structures, marquees or other appurrentint
112.2 Notice
srnietures, or fees of inspections, certificates of
written notice has s been given
leg owners: Only when ocaW^tT or other privileges or requirements, both
ven by the applicant to the within and without the jurisdiction of the department
owners of adjoining tats and to the owners of wired of building inspection.
or other facilities.of which the temporary removal is
necessitated by the proposed work, shall a permit be 114,3 Nov construction and alterations: The fees
granted for the removal of a building or stnrcture.
forIan examination,xammatuon
building '
permit and
inspections shall ui as prescribed a authorized
CMR
112.3 Lot regulation: Whenever s buildin
8 or ,
8 1
14.3.1 and the
srnrcrure is demolished or removed, the remises building official c h is authorized to
es
p establish b approved
hall Yri rules a schedule of ou p rates
s be maintained free f
rom all unsafe or hazardous for hnddings and arr+rehrres of all use groups and
conditions by the proper regulation of the tat, types of construction as classified and d6ned in
restoration of established grades and the erection of 780 CMR I,3 and 6
217/97 (Effective 2/2V97) 780 CMR- Sixth Edition 23
0623/00 FRI 12:36 FAX 9797400072 JOAN D KEENAN lb003,'007
780 CMR: STATE BOARD OF BUILDING REGULATIONS AND STANDARDS
THE MASSACHUSETTS STATE BUILDING CODE
114.3.1 Fee schedule: A fee for each plan variations of the approved construction documents
examination, and permit shall be building permit find inspection shall 0 and clic holder of the
be aid in accordance with the permit shall be notified of the discrepancies.
P e fee schedule a
s
established by the municipality.
115.6 General: In the discharge of his duties, the
114,4 Accounting: The building official shall keep building official shall have the authority to enter at
an accurate account of all fees collected; and such my reasonable hour any building, srnrcture or
collected fees shall be deposited in the jurisdiction Premises in the municipality to enforce the
treasury in accordance with procedures established provisions of 780 CMR,
by the municipality, or otherwise disposed of as If any owner, occupant, or other person refuses,
required by law. impedes, inhibits, interfere with, restricts, or
Obstructs entry and free access to every part of the
780 CMR 115.0 INSPECTION structure, operation or premises where inspection
authorized by 780 CMR is sought, the building
115.1 Preliminary inspection: Before issuing a official, or state inspector may seek, in a court of
permit, the building official shall, If deemed competent jurisdiction, a search warrant so as to
necessary, examine or cause to be examined all apprise the owner, occupant or other person
buildings, sntrclures and sites for which an concerning the nature of the inspection and
application has been filed for a permit to constntet, justification for it and may seek the assistance of
enlarge, alter, repair, remove, demolish or change
the use or occupancy thereof, police authorities in presenting said warrant.
115.2 Required inspections: gtkr issuing a 115,7 Identification; The building official shall
building permit, the buildingofficial shall conduct rry proper identification when inspecting
under 780 or premises in the performancs of duties
inspections during Construction at intervals sufficient under 780 CMR.
to ensure compliance with the provisions of
780 CMR The building official shall 'inform the I15,8 Jurisdictional cooperation: The assistance
applicant of the required points of inspection at the and cooperation of police, fire, and health
time of application. Upon completion of the work departments and all other officials shall be available
for which a permit has been issued, the building to the building official as required in the
official shall conduct a final inspection pursuant to performance of bis duties.
780 CMR 115.5. A record of all such examinations
and inspections and of all violations of 780 CMR 115.9 Coordination of inspections: Whenever in
shall be maintained by the budding official. For the enforcement of 780 CMR or another code or
buildings and strucirrres subject to construction ordinance, the responsibility of more than one
control, the owner shall provide for special building official of the jurisdiction is involved, it
inspections in accordance with 780 CMR 1705.0, shall be the duty of the building officials involved to
In conjunction with specific construction projects, coordinate their inspections and administrative
the building official may designate specific orders as fully as practicable so that the owners and
inspection points in the course of construction that
occupants of the building or structure shall not be
require the contractor or builder to give the building subjected to visits by numerous inspectors or
offitaa124 hours notice prior to the time when those multiple or conflicting orders, . Whenever an
inspections need to be performed. The building inspector from any agency or department observes
official shall matte the inspections within 48 hours an apparent or actual violation of some provision of
after notification. some law, ordinance or code not -within the
inspector's authority to enforce, the inspector shall
115.3 Approved inspection agencies:The building report the findings to the building official having
official may accept reports of approved inspection jurisdiction.
agencies provided such agencies satisfy the
requirements as to qualifications and reliability, 780 CMR 116,0 REG1S"MERED
115.4 Plant inspection: Where required by the ARCHrMCIURALAND
provisions of 780 CMR or by the approved rules, PROFESSIONAL ENGINEERING
materials or assemblies shall be inspected at the SERVICES-CONMUC77ON CONTROL
point of manufacture or fabrication in accordance 116.1 General: The provisions of 780 CMR 116.0
with 780 CMR 1703.3. define the construction controls required for all
buildings and ,striciares needing registered
115,5 Final inspection: Upon completion of the architectural or registered professional engineering
building or stn viure, and.before issuance of the scrnces, and delineate the responsibilities of such
certificate of occirpgncy required by 780 CMR Professional services together with those services
120.0, a final inspection shall be made. All that are the responsibility of the contractor during
cOastruction
24 780 CMR-.
Sixth Edition 217/97 (Effective 2128/97)
EXHIBIT B
f
COMMONWEALTH OF MASSACHUSETTS
ESSEX, ss SUPERIOR COURT
CIVIL ACTION NO. 00-886B
ONE COUSINS STREET REALTY )
TRUST, Donna Colitz, Trustee, )
Plaintiff )
VS. )
CITY OF SALEM, Acting by Robert W. )
Turner, Chief of Fire Department; and )
Peter Strout, Building Inspector, )
Defendant )
AFFIDAVIT IN SUPPORT OF PLAINTIFF'S
EMERGENCY MOTION FOR RECONSIDERATION OF
MOTION FOR TEMPORARY RESTRAINING ORDER
I, Rene Mugnier, do hereby depose and say the following based on
personal knowledge and belief:
1. I am President of Rene Mugnier Associates, Inc., which is a firm of
structural engineers. Attached hereto is my cirriculum vitae.
6
2. I have examined the buildings a1-11 Cousins Street, m,
64 wc-0 ap a At-k- 4 r�CA&444 r►M1u .u+ rntOLw
MassachuseftZwhich is the subject matter of this litigation, and 1 prepared a
Report, which is attached hereto.
Signed under the pains and penalties of perjury thi day of August, 2000.
R ne godr
- 6O fel YVA ZT:60 OOOZ/OE/RO
RENE MUGNIER ASSOCIATES, INC.
STRUCTURAL ENGINEERS
66-70 UNION SQUARE SUITE 204 SOMERVILLE, MA 02143-3032 PHONE(617)6665566 FAX(617)666-4115
Dear Prospective Client,
Rene Mugnier Associates has been in the business of providing structural engineering
services to Boston's public and private sectors since 1980. -If you have not worked with
us in the past, this portfolio will provide you with some sense of how our firm has
impacted the region's skyline. However, this document is a brief and modest one, as no
portfolio could fully represent twenty years of engineering experience.
Each year, Rene Mugnier Associates performs over 500 inspections of questionable
properties, with roughly 100 resulting in contract work for structural reinforcement,
repair, or redesign. Undoubtedly, we are Boston's most experienced provider of
residential engineering services, and we are experts at prolonging the useful life of this
city's cherished public, commercial, and residential properties.
The remainder of our work falls into several categories. Our firm implements
architectural plans for the construction of new buildings or building additions. We
supervise construction, to verify that work proceeds without dangerous shortcuts or
oversights. We provide the services of an expert court witness, and we are often hired
to review and verify the output of other structural engineering firms.
Whether-you have pressing structural needs, casual maintenance concerns, a legal
contention, or plans that need to be verified or implemented, our firm has the
experience to craft a personalized solution. We can be of valuable service to yc:i from
project conception through project completion. I should mention that we do not work in
the Boston area alone, as our ciigineers routinely visit sites in Cape Cod, Martha's
Vineyard, Rhode Island, and Vermont.
I look forward to spe you.
?NA s
Very truly your ME i
GUM
Rene Mugnier � eon'AIE��r M
RENS MUPRINCIPAL
P.E.,
CATION Baccalaureate of Secondary rY Studies
First Section — Modern Studies, 1956
Second Section — Mathematics, 1957
University of Toulouse —Toulouse, France
B.S. Equivalent in General and Special Mathematics, 1960
L'Ecole Speciale des Travaux Publics— Paris, France
Master's Equivalent in Engineering, 1963
Massachusetts Institute of Technology— Cambridge, MA
Graduate courses in Soil Engineering, Advanced Concrete
and Advanced Computer, 1965
REGISTRATIONS, Massachusetts No. 24646
ACTIVE New Hampshire 3356
Rhode Island 4039
Vermont 3779
REGISTRATIONS, Maine No. 3918
INACTIVE Iowa 10119
Tennessee 13216
MEMBERSHIPS, Boston Association of Structural Engineers, president 1984
FORMER American Institute of Steel Construction
American Concrete Institute
LANGUAGES Fluent in French, Spanish, and English
Speaking ability in Arabic
Single And
D Structural Investigation And Repair: S
AWARDS AN g P 9
PUBLICATIONS Multi-Family Dwellings
By Rene Mugnier, P.E. Softcover, 337 pages, 1996.
The Car Barn, New Bedford, MA
Excellence in Apartment Design, 1982 — Architectural
Record Magazine.
Build Massachusetts Award, .1981 — Associated General
Contractors of Massachusetts.
Best Rehabilitation, 1981 — National Home Builders
Association and Better Homes and Gardens Magazine, in
association with the Claremont Co., New Bedford.
Durham City Hall, Durham, NH
Excellence in Architecture Award, 1979 — New England
Regional Council of the American Institute of Architects, in
association with Gelardin Bruner Cott, Inc., Cambridge, MA.
Close Building, Cambridge, MA
Award for Merit, 1978 New England Regional Council of
the American Institute of Architects, in association with
Gelardin Bruner Cott, Inc., Cambridge, MA.
Berman Residence, Weston, MA
AIA. Honor Award for Private Residence, Honorable
Mention, 1977 — New England Regional Council of the-
American
heAmerican Institute of Architects.
EMPLOYMENT, Thomas Rona and Associates, Inc., 1971-73
FORMER
E.R.A., Inc., Brighton, MA, 1969-71
Paul Widlinger, Consulting Engineer, Cambridge, MA, 1965-
67, 1968-69
D.I.R.A.C., Mexico, D.F., Mexico, 1967-68
Group d'Edude et d'Enterprises Parisien, Paris 1964-65
Bureau d'Edudes du Fromont, Rouen, France, 1964
ALEXANDER DORFMAN P.E., CHIEF ENGINEER
EDUCATION Odessa Structural Engineering Institute— Odessa, USSR
Master's Equivalent in Structural Engineering, 1964
REGISTRATION Structural Engineering, Boston, MA No. 34438
PUBLICATIONS "Underground Monolithic Concrete Shelters for.Public Safety'
Concrete Structures & Design, Moscow, 1975
"Underground Pre-cast Concrete Shelters for Public Safety"
Concrete Structures & Design, Moscow, 1974
"Design of Steel Framed Shelters for Public Safety"
Steel Frame Construction & Design, Moscow, 1972
"Rigid Frame Construction for Civil & Commercial Buildings"
Steel Frame Construction & Design, Moscow, 1969
_MPLOYMENT, Moscow Institute of Design, Moscow, USSR, 1973-1981
FORMER Buildings and Facilities for Ministry of Public Health
Odessa Institute of Design, Odessa, USSR, 1959-1973
Industrial & Civil Buildings and Facilities for Ministry of
Agricultural Machinery
CHRISTOPHER SWEET E.I.T., PROJECT ENGINEER
EDUCATION University of Massachusetts— Lowell, MA
Bachelor of Science in Civil Engineering, 1998
REGISTRATIONS E.I.T. — Massachusetts
AWARDS AND Civil Engineering Honor Society (Chi Epsilon) — President,
DISTINCTIONS Lowell chapter, 1997-98
Academic Excellence Award — University of Massachusetts,
Lowell, 1994-95
EMPLOYMENT, Superior Construction, 1997
FORMER R.P. Lamarre Excavation and Landscaping, 1996
f
MARK SMOLYAR
EDUCATION Structural College — Kiev, USSR
B.S. Equivalent in Structural Engineering, 1978
Control Data Institute— Cambridge, MA
COBOL and FORTRAN Computer Programming, 1985
EMPLOYMENT, Coggins & Tereshenko Associates, Boston, MA
FORMER
Industrial Buildings Design Institute, Kiev, USSR
Representative Projects: Single-Unit Residential
350 Arborway 57 Woodland Rd. 25 Hancock St.
Jamaica Plain, MA Concord, MA Somerville, MA
Reinforcement'00 Home Remodeling '99 Home Repairs'99
Mr. Damico Mr. Walker Ms. Sauer& Mr. Dahlbacka
41 Longfellow Road 126 Magazine St. 31 Brook Street;-Brookline
Watertown, MA Cambridge, MA Home Repairs'98
Floor Reinforcement'00 Second Floor Addition '99 Mr. Gerber
Home Addition '99 Fairbank Designs Ltd.
Eckert Associates 293-97 Elm St.
19 Jennings Circle Cambridge, MA
28 Harvard Street Peabody, MA Balcony Support'98
Charlestown, MA Repair of Retaining Wall'99 Ms. Rodriguez
New Steel Balcony '99 Martignetti Enterprises, Inc.
Zecher&Associates Roosevelt Residence'97
25 Granville Rd Nantucket, MA
Danforth Residence '99 Cambridge, MA Judge Skelton Smith
Little Compton, RI Framing Reinforcement'99
Ivan Bereznicki Associates, Inc. Ms. de Rham - Parks Residence'97
Brookline, MA
35 &42 E. Springfield St. 3 Boldwater Road Boger Construction
214 North Hampton St. Implementation '99
Boston, MA Judge Skelton Smith Landauer Residence '97
Reinforcement'99 Nantucket, MA
The Narrow Gate 119 Kandall Road Mr. Pettigrew
Kitchen Remodeling '99
84 Lake St. Mr. & Mrs. Kantaros Fay Residence'97
Arlington, MA Wellesley, MA
Reframing '99 8 Florcence St. Mr. Fay
The Canton Corp. Cambridge, MA
Alterations'99 20 Tappan St.
9 Gloucester St. Mr. Lamb Wellesley, MA
Boston, MA Porch'97
Restoration '99 21 Pinckney Street Alan Slawsby Associates
Mr. Feinzig Boston, MA
Basement Reinforcement'99 24 Churchill St.
4 Bicentennial Drive Judge Skelton Smith Brookline, MA
Lexington, MA Underpinning'97
Reinforcement'99 121 Windsor Road, Waban, MA Lutcavage/Kesler
Mr.Wilner Home Addition'99
Joseph Kennard Architects . Kosovsky Residence '97
254 Marlborough St. Brookline, MA
Boston, MA 8 Palmer St., Arlington, MA Claude Menders Architects
New Wine Closet'99 Crack Repair'99
Trinity Properties Mr. & Mrs. Mentis Clarey Residence'97
Wellesley, MA
583 Hancock St. 12 Park Avenue, Cambridge Eckert Associates
Quincy, MA Apartment Extension '99
Roof Reinforcement'99 Mr. & Mrs. Panisuk
Mr. Yee
Representative Projects: Multi-Unit Residential
423 Hanover St. '00 Malcom X Apartments '98
Boston, MA New York, NY
Claude Menders Architects Inc. Onsite Insight
6 Hartford St. '00 Centennial Island Apts.
Roxbury, MA Reinforcement'97, '98
VBCDC Lowell, MA,
Sterling Bay Company
The Home for Little Wonders
West Roxbury, MA 51 Mt. Pleasant'97
Exterior Restoration '99 Cambridge, MA
Mt. Pleasant St. Condo Trust
Bristol 5
Fall River/New Bedford,MA
77 Martin St., Cambridge MA
Itin
Multiple Inspections Consu '97'99 Consulting
'97
Companies Martin St. Condominium Trust
Village Green Condominium Braemore Condominiums
Malden, MA Masonry Wall'97
Basement Repair'99 Dolben Company
Alpine Properties
208 Allston St., Brighton, MA
Senior Center Exterior Wall '99
Brookline, MA Porch Repair'98
Shoring '99 R. Brown Partners
Vertec Corporation
316-322 Talbot Avenue
10-12 Abbot St., Boston, MA Dorchester, MA
Rehabilitation '99 Floors Rehabilitation '99
Eisenberg Haven Architects, Inc. Mr. Gibson
Representative Projects: Commercial
World Trade Center Cabot Place II Office Building 200 West St., Waltham, MA
Boston, MA Waltham, MA 8 Cambridge Center, MA
Peer Review '00 Peer Review '99 Peer Reviews '98
Pembroke Real Estate Cabot, Cabot& Forbes of N.E. Boston Properties, Inc.
423 Hanover St., Boston, MA Reebok World Headquarters New England Business Ctr.
Rehabilitation '00 Peer Review '98-99 - Peer Review'97
Claude Menders Architects McNamara/Salvia, Inc. Trammel Crow Co.
La Ronga Bakery 131 Dartmouth St. Landmark Cinema
Somerville, MA Peer Review'99 Waltham, MA
Foundation Design '99 Northland Development Peer Review '97
Ship to Shore
Marathon Sports Genetics Institute, Andover, MA
Cambridge, MA Peer Review'99 24 Churchill St., Brookline, MA
Reinforcement'00 Sordoni Skanska Construction Soil Borings'97
Black River Architects State Street Bank&Trust
Biogen, 15 Cambridge Center
Mass Pike Towers Cambridge, MA 526 Massachusetts Ave.
New Front Entrance '99 Peer Review '99 ' Boston, MA
Fondren McGrath Architects _ Fire Damage'97
830 Winter Street Caleb Clapp
Cambridgeport Bank HQ Waltham, MA
Peer Review'99 Peer Review'99 Hoyts Cinema
Boylston Properties Spaulding & Slye Services Bellingham, MA
Peer Review'97
Harvey Street Realty Trust'99 Parametric Technology Corp.
Cambridge, MA Needham, MA Wentworth Building '97
Midtown Real Estate, Inc. Peer Review'99 Lowell, MA
Spaulding & Slye Services Boston Land Company
North Shore Buick
Malden,MA 33 Arch Street Office Tower Clover Leaf Mall'97
Framing Reinforcement'99 Boston, MA Natio, MA
Damon Enterprises Reinforcement.99 Forest Properties
Widlinger Associates
155 Portland Street 1285-91 Massachusetts Ave.
Boston, MA Taiwan Restaurant Boston, MA
Peer Review'99 Cambridge, MA Shoring'97
Pisani +Associates Architects New Building '99 Maloney Properties
Apple Hill III 500 Unicorn Park Drive Ferdinan Building, Roxbury, MA
Peer Review '99 Peer Review'98 Facade Repair'97
The CW Companies, Inc. D.I.V. Unicorn LLC Longbay Management
166 Mountain Avenue Trust Apple Hill, Phase II Wang Corp. Building
Malden, MA Peer Review'98 Billerica, MA
Lintel Design '99 D.I.V. Natick Two LLC Peer Review'97
Mr. Gilblair
125 Flanders Rd., Westboro, MA
HVAC Unit Support'97
Color Technology
Representative Projects: Government
Old City Hall Newtonville Post Office
Lowell, MA Newtonville,'MA
Reinforcement'99 Restoration '96
The Architectural Team City Design Collaborative
Worcester Public Library County Court Condominiums
Additions & Renovations '99 Dover, MA
Tappe Associates Inc. Restoration '95
Trust Construction Corporation
Representative Projects: Educational
Boston College H.S. Sabis Charter School - African Meeting House'98-99
Dorchester, MA Somerville, MA Boston, MA
Masonry Collapse '00 Roof Reinforcement'99 Stull and Lee
John Harriss Architects
Regis College Fayerweather St. School '98
Weston, MA Learning Ctr. for Deaf Children Cambridge, MA
Repair of Parterre'99 Framingham, MA Charles Myer& Company
The Primary Group New Fire Escape'99
Cooper Gardens; Roxbury, MA
Lesley College Orchard School Rehabilitation '98 .
Cambridge, MA Watertown, MA Kyle McKinney
Fire Escape Inspections '99 Rehabilitation '99
Marc Maxwell Belmont Day School
Bentley College Belmont, MA
Roof Reinforcement'99 Addition '97
M.L. Deez&Associates Charles Myer& Company
Representative Projects: Religious
Morningstar Baptist Church Saint Michael's Church
Mattapan, MA N. Andover, MA
Implementation '00 Peer Review '98
Stull & Lee
Temple Israel
St. Catherine's Parish Church Boston, MA
Westford, MA Support of Roof HVAC Units '99
Peer Review '99 Wall Removal '97
Design Partnership Architects Claude Menders Architects
Representative Projects: Hospitals
N.E. Medical Center Newport Hostpital East Wing Cambridge Hospital
Boston, MA Newport, RI Cambridge, MA
Various '96-00 Peer Review'98 PeerReview '97
Warner+Associates
Somerville Hospital Uphams Corner Health Center
Somerville, MA Vertec Corporation Morton Hospital
LightSupport'00 Consultation '98 Warner+Associates
Warner + Associates Surgery Light Unit'97
Bio-Square II
Marlborough Hospital B.U. Medical Center Middleboro Hospital
Peer Review '99 Peer Review '98 Middleboro, MA
Taylor& Partners, Inc. Lars I. Iverson Inc. Const. Mgmt. - X-Ray Lab '97
Warner+Associates
Harvard Pilgrim Health Care Westboro State Hospital
Peer Review '99 Westboro, MA
H. Lee Keller Jr. P.E. Stabilization and Repair'96-97
Pierce Lamb Architects
Expert Witness Testimony
99 Garden St., '00 8 Saginow Ave. '99 15 Starboard Lane'98
Cambridge, MA Cambridge, MA Osterville MA
Chappell White LLP Flynn &Associates, P.C. Sentinel Foam Products
64 Bay Shore Drive:00 269 South Main Street'99 1 John Benson Road '98
Plymouth, MA Chris Penta Lexington, MA
The Robbins Company 24 Lee Road '98 U.S. Financial Advisors
104 East Brookline St. '99 Wayland, MA 84 Strawberry Hill Street'98
Brookline, MA Attorney Peter Gossels Dover,MA
Mr. Tilahun Rackemann,Sawyer&Brewster
12 Overlook Drive '98
Day Building Joint Trust'99 Danvers, MA Giulianni Residence '98
Lane Greene Murtha Sean McMahon, Esq. Finnerty and Finnerty
47 Juniper Road '99 100 Gilmore Road '98 Gatta vs. Commonwealth '97
Holbrook, MA Wrentham, MA Robert Gatta
Eric L. Levine&Associates Tiger Home Inspections
84 Webster Ave. '97
28 Nardell Street'99 Darwin v. Hanover'98 Somerville, MA
Newton Center, MA Cellai and DeNauw Edith & Stephan Wyner
Hargraves, Karb, Wilcox&Galvani
Nagle Bldg., Central Artery '98 70 Chestnut'97
Town of Dover v. CBI, Inc. '99 Mr. Yuhas Brookline, MA
Conn Kavanaugh Leslie Slater
16 Highland Street'98
Mr. Bahamon 7 Baldwin Rd '97
Westford, MA
Gerald Moore Esq.
COMMONWEALTH OF MASSACHUSETTS
ESSEX; ss SUPERIOR COURT
CIVIL ACTION NO. 00-886B
ONE COUSINS STREET REALTY )
TRUST, Donna Colitz, Trustee, )
Plaintiff ) .
VS. )
CITY OF SALEM, Acting by Robert W. )
Turner, Chief of Fire Department; and )
Peter Strout, Building Inspector, )
Defendant )
AFFIDAVIT IN SUPPORT OF PLAINTIFF'S
EMERGENCY MOTION FOR RECONSIDERATION OF
MOTION FOR TEMPORARY RESTRAINING ORDER
I, Rene Mugnier, do hereby depose and say the following based on
personal knowledge and belief:
1. I am President of Rene Mugnier Associates, Inc., which is a firm of
structural engineers. Attached hereto is my cirriculum vitae.
��`cau�Lr
2. 1 have examined the buildings a1-11 Cou inst Street, S m,
&4 wcCt 44 a AoF 4 roc oua if%V6 A;A
Massachusetts:'which is the subject matter of this litigation, and I prepared a
Report, which is attached hereto.
Signed under the pains and penalties of perjury thi day of August, 2000.
ffb�
R eg r
bOf�ll IM zT:Vo 0009/oC/80
RENE MUGNIER ASSOCIATES, INC.
STRUCTURAL ENGINEERS
66-70 UNION SQUARE SUITE 204 SOMERVILLE, MA 02143-3032 PHONE(617)666-5566 FAX(617)666-4115
August 22, 2000
Cousins Street Realty Trust
c/o James Rogal Attorneys At Law
32 Church Street
Salem MA 01970
p) 978-745-0500
RE: 9 Web Street, Salem— Leather Factory
Dear Mr. Rogal:
This letter documents our observations made on August 22, 2000 during our visit to
the referenced address. This report is based on our observations, qualifications,
and information provided to us during this visit. It does not claim to be an
itemization of all structural problems, and is intended only to provide the client with
a general idea of the structural problems observed during the walk-through
inspection.
I. OBSERVATIONS
This is a composition of several types of buildings, built at very different times,
which are a mixture of masonry, brick, CMU blocks and wood-framed buildings.
There is a very large chimney on the back, right side of the building. See picture 6
We started by looking at the left wall of the building. Picture 1-01 was taken on the
left side of the one-story, wood-framed structure, which had been damaged at the
base. Being a wood-framed structure it should be relatively simple to strip the wall
of all finishes straighten the studs, replace the damaged members and repair the
sill plates, before providing new siding.
At this time, we do not see any structural risk associated with this portion of the
structure. We nevertheless, recommend the introduction of isolated 45-degree
diagonals inside the building until a proper design is provided.
We then looked at the back of the building. See picture # 1-02. There again, we
noticed that there is some need of repair at the base of the wood portion of the
1
building, which is too close to the ground and has degraded in certain spots. The
area will need to be properly addressed by exposing the wood and replacing the
damaged portion of the wood. The upper part appears to be in good condition.
The siding will have to be repaired to protect against water penetration. See picture
# 1-03. However, this is not an emergency at this time.
The masonry wall is in acceptable structural condition. It is in need of partial
repointing and the replacement with a few new bricks. However, the condition is
structurally stable. See picture#1-04
The CMU corner of the building is also in rather good condition, structurally. See
picture # 1-05.
We noticed that the chimney appeared to be in good condition, as well. See picture
# 1-06 & 1-07.
We then looked at the wood structure from the back, (the left portion of the
backside) and the right side of the building. See pictures # 1-08 and 1-09. Picture #
1-09 is of the right side of the building also see pictures 1-10 & 1-11.
Some of the wood portion of that fagade will need to be replaced, whereas there
are some signs of rot, damaged members should be removed and replaced with
properly sized timber. See picture # 1-10.
Some of the siding, which has been exposed to the weather, has been damaged
and we suggest that this portion of the siding, which is damaged by rot or insect, be
removed and replaced with the proper new pieces. See picture# 1-11.
In general, this portion of the building is in relatively good structural condition and
presently there is no structural hazard associated with its structural condition.
As we looked at the front of the building, facing Web Street, the brick is in generally
good condition. There is need for partial repointing adjacent to the lintel and deep
repointing will be necessary on the portion that is level with the top of the window.
See picture # 1-12. This is particularly obvious on both sides of that fagade. See
pictures # 1-13, 1-14 & 1-15. The window's damage is localized. It is on each side
of the front wall of the building, toward the very top of the windows. There is a
possibility that repointing will also be a needed under the sign.
As we looked at the left side of the building, there is a similar concern, which will
need to be addressed. This corresponds to the top of the window, on each side of
the double window, as indicated in our pictures # 1-17 and 1-19.
Also on the left side, we noticed that there is some disturbance of the siding but, the
building as a whole, seems to be in an acceptable condition. The structure will
2
need to be properly exposed, to be assessed. We suggest that some of the siding
be repaired and that some new exterior siding be introduced to cover the structure
and prevent water damage. See picture#1-20
On the right side of the building, we recommend that the fagade be attached to the
floors. (There is a slight movement of the exterior wall, which will need to be
addressed. Given the fact that this is built of lumber, it should be relatively simple
to temporarily attach the wall to the floors, at this time).
We then were shown three books of pictures because, we were not allowed to
penetrate the building. From those pictures, we found the following:
The structure is mostly built of heavy timber, which appears to be worn, but, in
acceptable condition.
There are indications that the structure needs reinforcement and better
connections.
From what could be seen in the pictures, there was no sign of collapse or imminent
danger of collapse
Based on our experiences, observations and our interpretations of the pictures, it
appears to us, that this building does not show signs of imminent danger of
collapse, at this point. Our office has seen and evaluated several buildings that
have been in worse condition.
At this stage, we suggest one of the two following steps.
1) It is possible that this building could be remodeled and brought back to a proper
structural condition. For this, structural plans must be made, which will depict
the entire structure as it exists, at this time. The plans will also include all new
work to reinforce the existing structure and implement the architectural
transformations, necessary to rehabilitate this building. Particular care must be
given to ensure that the building will present a good resistance to seismic force,
as per the recommendations of the most recent state building codes.
2) Economic consideration may lead to the construction of a new structure. For
this, new plans will have to be developed to depict the new structure, as it
should be built after the demolition of the existing building.
In both cases and until work can be implemented, whether it is the rehabilitation or
the demolition of the existing building, it is important that the first step be to properly
and professionally stabilize the building. This will allow for the necessary time to
proceed with the design and obtaining the necessary permits, needed to address
the remodeling or the new construction. We strongly suggest that a contractor, well
3
versed in that type of reinforcement, possessing the proper liability and expertise,
be called on thej
roec
p t to implement all necessary shoring. He should ensure that
the building would be able to withstand the weather, all live and dead loads, etc.
until the plans for the new structure are ready to be implemented. This is of
particular concern because, the building must go through another winter season
when the snow load will be acting on the roofs of that structure.
We suggest that structural plans be drawn indicating the structures as they exist at
the time of the investigation. Also, including all new reinforcements necessary to
bring the structures up to Code or a set of plans necessary for the construction of a
new building. Such plans would be useful in that:
• They would provide comparative bids from contractors on the work to be
executed.
• They would allow necessary permits to be obtained for the repair work.
• They would document the executed work for future reference, such as in the
event of later alterations to the building.
It is also important that the Structural Engineer visit the site during construction, so
as to verify its compliance with the plans and structural recommendations. .
This report addresses only those structural problems observed during the
walk-through and documented above. We did not implement computations or
verify compliance with earthquake code regulations, and do not claim that the
observed structural members are of the proper size and properly transmit the load
from floor to floor.
The Structural Engineer is not responsible for determining the existence of insect
infestation and waterproofing.
This report and analysis is based upon observations of the visible and apparent
condition of the building and its major components on the date of this inspection.
Although care was taken to perform a proper and thorough exterior inspection, we
make no representation regarding the existence of latent or concealed defects. No
warranty or guarantee is expressed or implied with any structure. We do not take
responsibility for the capacity of stairs, banisters, and handrails. This report is
made only in the best exercise of our ability and judgment.
Conclusions in this report are based on the normal working life of various structural
items. Predictions of life expectancy and the
balance of useful life
are necessarily
based on indust and/or statistical comparisons.arisons. It is essential
P to understand that
actual working conditions can alter the useful life of any item. Previous use or
misuse, irregular maintenance, faulty manufacture, unfavorable conditions,
4
unforeseen circumstances and acts of God can make it impossible to state
precisely when a specific item would require replacement. The client should be
aware that certain components at the referenced property may function normally at
the time of the inspection, but due to their nature may deteriorate rapidly without
notice.
Shoul u have any questions, please feel free to contact me.
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Certificate No: 630-06 Building Permit No.: 630-06
Commonwealth of Massachusetts
City of Salem
Building Electrical Mechanical Permits
This is to Certify that the CONDOMINIUM located at
Dwelling Type
0001 COUSINS STREETin the CITY OF SALEM
----------------------------------- -- -- ---- -- ----- ----------- ------- ------------------------------------
Address TowrJCit - - - - - - -
Name
IS HEREBY GRANTED A PERMANENT CERTIFICATE OF
OCCUPANCY
3 COUSINS STREET
This permit is granted in conformity with the Statutes and ordinances relating thereto,and
expires unless sooner suspended or revoked.
Epiration Date
----`-------------- ---- - ------- --- -
Issued On:Tue Jul 25,2006 ------------------
- --
GeoTMS®2007 Des Lauriers Municipal Solutions,Inc. -------------------- ----------
-----------------------------------------------
CITY OF SALEM
BUILDING PERMIT
Certificate No: 633-06 Building Permit No.: 633-06
Commonwealth of Massachusetts
City of Salem
Building Electrical Mechanical Permits
This is to Certify that the RESIDENCE located at
--------------------------------------------
---------
Dwelling Type
0001 COUSINS STREET in the CITY OF SALEM
------------------------------------------------------------ —
-- --------------- ---------------------
-------------------------------------------------
Address Town/City Name
IS HEREBY GRANTED A PERMANENT CERTIFICATE OF
OCCUPANCY
(9 COUSINS STREET UNIT A NEW MODULAR HOME)
This permit is granted in conformity with the Statutes and ordinances relating thereto,and
expires unless sooner suspended or revoked.
Expiration Date
4.l
Issued On:Fri Jul 20, 2007
- - ----------------
-------- -
GeoTMS®2007 Des Lauriers Municipal Solutions,Inc. ----------------_______- -------------------------------- __-______
CITY OF SALEM
BUILDING PERMIT
(3t�1� 3
0001 COUSINS STREET 633-06
GIs#: 633 COMMONWEALTH OF MASSACHUSETTS
Map: 41.
Block: CITY OF SALEM
Lot: 0154
Category: 104;New Two family;4
Permit# 03-06,LBUILDING PERMIT
Project C JS-2006-1306 i
Est Cost $II0100000 <- '
Fee Charged;', $1,10000
Balance Dae: $.00 ?' PERMISSION IS HEREBY GRANTED TO:
Const.Class: : Contractor: License:
Use Group::,, EMERY CONSTRUCTION CORP
Lot Size(sq.ft): 3730 Owner., CLOSE COUSINS LLC
Zoningi R2•
Units Gained.,, _ Applicant. EMERY CONSTRUCTION CORP
Units Lost: AT. 0001 COUSINS STREET
Dig Safe#i
ISSUED ON: 07-Feb-2006 AMENDED ON: EXPIRES ON: 07-Aug-2006
TO PERFORM THE FOLLOWING WORK:
633-06(9 COUSINS STREET UNIT A)CONSTRUCT NEW HOME MODULAR TJS
POST THIS CARD SO IT IS VISIBLE FROM THE STREET
Electric Gas Plumbing Buildin
Underground: Underground: ,^I Underground: J'n/ Excavation:
Service: Meter: ( Ave \ /j/U I Footings:
Rough:p 1 Rough: r I�y / „"I,�/`� Rough: r� ( ,/ Foundation:
Final: a /�//OG Qu Final: ! JI,'/W.1'• Final: Rough Frame:
I ��v
Fireplace/Chimney:
D.P.W. Fir Health
QAC_ Insulatio /
Meter: Oil: p
Final: L
House# Smoke:
/� Tre y: /Q�O
Water: � Alarm: // O
Sewer: Sprinlders:
THIS PERMIT MAY BE REVOKED BY THE CITY OF SALEM UPON OLATION OF ANY OF ITS
RULES AND REGULATIONS. •
Signature:
Fee Type: Receipt No: Date Paid: Check No: Amount:
BUILDING REC-2006-001893 07-Feb-06 6317 $1.100.00
.rug
GeoTMS®2006 Des Lauriers Municipal Solutions,Inc.
3�
9 �V- -
AUG 11 2000 14:38 FR DCPO-CONST SERV 617 727 4043 TO 619787409646 P.12i13
�1...,-..,-- r.. �.+�an iyaLala n.,. ucr
776 740 9846 P. 12
AAaA COpg 978
TAL.745dH0
Tn.l4bW P.O..aox w
RICHARD TANNING CO., INC. FAX '7W*%
wenwmu of
AWMW V6LDVA o"w"BuEoa
9 WUS ST.--SA=. MA 01910
Jan. 29,1999
Leo I. Tremblay
Director of Public Property
Inspector 6f Building
REQ 9 Webb Street
Dear Mr. Tremblay,
We are ,requesting a .buildiag permit to address certain
temporary repairs reccmmehded by Robert K. Rumpf and Associates
to enable continuing work to be performed at this location,
until the eAC of June 1998.
It Vill be our intentl.oa at that time to determine if
it will be ;economically viable to do permanent re" to the
building, e�i.xo ,w.,a,,,.. &T'1 ~460.0 S
Thank you for your continuing aunpert in thi tter.
Sine ly,
Lea 8i a
i
RUG 11 2000 14:3E FR DCPO-CONST SERV 617 727 4043 TO 819767409846 P.11i13
(situ ofalern, taootl�u� tto
juftitc f repertp Legg taaent
NulMIS 14parttgeet
llee ftlem Grren
soe•xs•as9s.tet. Seo
Leo E. Tremblay
Director of Public Property
Inlpector of Building
Zoning Enforcement Officer
October go, 1997
Richard Leather Co. Inc.
9 Webb Street
Salem, Masa. 01970
ATT: Leo Zisis
RE: 9 Webb Street
Dear Mr. Zisis:
This office has been more than patient in waiting for
a response. from your structural engineer as to what
preeautiona are being made to make the structure safe to.
enable continuing work to be performed in this building
located at 9 Webb Street.
This office considers this building unsafe for
occupancy under the prellUtt condition.
days uponsreceiptyofhthiselatter$ toiInsformiuseas toslhat
violation$. Failure toldotwilltresultitintlegal action
being taken.
Thank ,you in advance for your anticipated cooperation
In this matter.
Sinter y,
Leo. E. Tremblrunidin&a Inspector of
LET: ac=
cc: David Shea
Health Department
Fire Department
Councillor Paikowski, Ward 1
- AUG 11 2000 14:37 FR DCPO-CONST SERV 617 727 4043 TO 819787409846 P.10i13
'- •� •' ^�"' a.+•�+++.+o uar yre 740 9046
0tv of ealem, filssssoustus
.,�,. lublfc IMP& td.$rpanatmt
NUMIng $rparMegt
am odgm from
see•Nsa�re lse.ars
Leo E. Tremblay
Director of Public.Property
lmpector of Building
Zoning Enforcement Officer
July 9, 1997
Richard Leather Co. Inc.
9 Webb Street
Salem, Mass, `01970
Attention: Leo Zisis
BE:. 9 Webb Street
Dear Mr. Zisis:
On July 8 , 1997 , per the request of the City of Salem
Health Department and some of your abutters, an inspection
was conducted at 9 Webb St. on the existing condition of
your factory.
Per our conversation, you agreed to hire a structural
engineer and perform any necessary structural repairs that
he found would be .required, He is also to file a report
to my office in writing of his findings, and means of
correction.
This office intends on working Closely with you to
bring this building into State Building Code compliaaee.
Thank you for your anticipated cooperation in this
matter.
Sincerely,
Leo E. Treabl&-y /
rnspector of suildinga
LET: scm
Cc: David Shea
Health Department
Fire Department
Councillor Paskowski, Ward -1
RUG 11 2000 14:37 FR DCPO-CONST SERV 617 727 4043 TO 819787409846 P.09i13
^.+ - r+-...+ ..� -res ori tiwLnn t+ui LDihIG D6r 978 740 9946 P. 08
Y
Therefore you etc directed to begin the process to make safe at remove the structure.
Places contact this office within ten(10)days upon receipt of this letter to discuss your
plena for this building,
Failure to respond will result in court action being filed in Salem District Court.
If you feel you are eggrievod by this order you may,appal to the state Building Code
Board of Appeals. Forms available at our office.
Thank you in advance for your antieipated coopers ion in this matter.
sincerely, .
Thomes St.Pierre
Local Building Inspector
CV Mayor usovicz
Fire Prevention
Councillor LaCgva
Polish Falcone Club of America
�I
I_
AUG 112000 1437 FR DCPO-CONST SERV 617 727 4043 TO 819787409846 P.08i13
"Wb-10-BIV 04 :42 PM SALEM BUr LDTma DEP 978 748 9846 p. 08
Cirp of Oafem, ta��ac�jugett�
Oublic$rapertp�epactrnent
Nuilbing Department
One" m Oran
(010)746.9696 ist.390
Peter Strout
Director of public Property
Itspector of Buildings
Zoning Fraforcaneat Oflicer C010,V
January 25,2000
1.11 Cousin`St.Realty Trust
Donna Colitz
do B011jct and Welob
32 Church Stmt
Salan,Mg. 01970
RB: 1.11 Causing Street
Dar Ms. Colitz;
Due to autnerous coaaplaints snd in response to neighborhood concern,I inspected the
exterior ofyourprop"located at 1-11 cons, Stmt: IWalso been inside the
building on s crAl o=sjons.
This department:is canoerasd About continued deWoration of this property.
As you are a probably aware.g structurat report,coaduoted by Robert RunWand
A da Ad JaMwy 1998,points,out IrmAl stmotmal problems.
summarizes;'The Present condition of the building is so poor,m to not TTltig Also
arrant nay
fmocielly viable attempt at perasaeat repairs.
The building is now,two years alder ad still suffering from Additional deoaioration
and the rotting problems caused by these leab.
Section 121 of the Stgte Building Code,780 C)R,.Allows a building official to declare A
building unsgfr gtrti Oture if it is OW to the Werther,abandoned or if such Structure would
be espeomy unsafe im case of Ste.
This department and,City of Sateen Fire Tkpermtetrt.feel this building would be
eapeciauy unsafe is case of bre.
i
RUG 11 2000 1436 FR DCPO—CONST SERV 617 727 4043 TO 819787409846 P.07/13-
AUG-LB-Se 04:47 PM SALEM LUILn SNG DEP 978 740 9646 P. 07
�o-
r
'� QCitp at &RIM, �,��ae�jugt ttg
. nepartntent ofttblfc f5etbitte
one ikltm Green
(9T8) 745.8585 ext. 321
a7r+wtev . ,F& ;ftx; (978) 746-5077
Dlreooa d Vubge arvxM
May 17,2000
Peter Strout,
Building Inspeotae
City of Sdem
one Win Green
Salem,MA 01470
RE: Board of Sumay,former Richards Leather,Webb St.
Dear .i+eter.
As you know,on May 12.2000 1.long with yourself:Chief TIMM,'Inapea<or
L&TuHppe,and William Hobbs visited and irtepAoted the above mentioned site. The
purpose of out inspection wu to determine the lave!of haaard that ad=at the she and
to detumine whether or not the building could be selvaged. As a resultof our inspection.
I can Gey firmly that the heel of hayerd is eatreioe and that It U not possible to savage
the adating struchn.
During my inspection,l noted the almost.wW lack of lateral bracing in the structure.
This feature makes the building Whereatly anshble,u acticed by the fact that the
building is 1l9148 towards Caudae Stnxf swveW inches. I Woo fro"tint at some
point,the roofttwses bed their bottom chords removed and replaced errth vWdcII poste.
This will result in tramsfe dq he roof load from the o ssside walls to the columns billow.
4n their bast day,the columns below were not desigtxd for that load. The ookumas that I
saw were ratted severely and damaged by.inspect. Severer lir joisea were barely
coached to their respective columns. Most connections were nailed and not bolted.
I notion quite a bit of damage that appeared to be new. I saw several again caeying
beams that wwe showing signs of teceat figure. The added weight Of the ken fir=this
winter when the gnbWer system iced couldbe to blame. The flat roof out the Coudue
Street side is supported on its uppers end by It single 2x4 ledger board, zltis lodger bas
pulled away from the wall as tmrah as a foot in places, The Weight of a Else fighter would
surely bring this roof down. I am worried that whew this.roof collapses(which 1 belleve
AUG 11 2000 1436 FR UCPO—CONST SERV 617 727 4043 TO 819787409846 P.06i13
QUG-18-00 04 :41 PM SALEM BUILDING DEP 978 740 9846 P. 06
HOBBS ENDEAVOUR CORPORATION
.e�,.1a„r,H d. +a selenea
J4Ra�k6ad&m!4S-EWMMA 0190
701.Sa62454
I2 May 2000
City of Salem
Public Propealty Department
g Dpafnt
Re:� aMOn3, 1-11 CousiM St,,Fomnr 4RirhW Co.,Inc,Hu1Bd'tag,
MA
Attention:Pater Stmut,Building Com dWonw
(3aalemCri:
You m1umm%wxby wee made a Vernal sunray of certain Conditiom at 11q
accompanied by Colorer Strout while others wore present. We were
The b Ung walls are outvf phmab wM a
the interior timber coh mns show this kam toword Cousins St Maur of
PI Mueb of the MM leant with associated distress to the timber beaam they
s?ruotl *s 1ptat W is severely&WiOtated,MnlotwaW
�PPm1 a and wWab*or bo&
we comma.Mt existing structure to be daager.*umW& d yam.Wo ,
rein water or snow on the toots, or a jar from heavy radar ft&could trigger a cow
We consider that the a mftm is a Used which could Ml t iu it M or death.Not 0*the
public as a whoks,but especigy the resHeam on the opposite side of Cousins St. ate at risk.
Very ft*l
l
HOBBS WDE4VOUR CORPORA71ON
William Loring Hobbs
I'resideat
��''✓ �, sir,am
Frank D.DeFako
Prindpal
I�_
AUG 11 2000 1436 FR DCPO-CONST SERV 617 727 4043 TO 819787409846 P.05/13
.+•.+..-+..-o... m+:w♦ rrtiNLCI.1 BUILDING D!P 979 440 9846 P. as
Reefnr•M. Rerrr A Assocures RE: PAPORT 1M or
Y 8003
CW4U_TIMENainaepS 8tructurellnapaction
UT
- 101 caner WmLrr Richard Tanning Co. IIpMM,
aAL91W,mans,ales'* Sem Moopapp
Ne. feat
esa7se�e PAX 00-74"M ? ara~
o1win
M►. Leo Tremblay
Wdldinq Inspector
Ora Salmi Green
aalsm, Messaehussi is 0ltrfo
•remand.
BPM re! iCtnalbnallaapeotlon
9 Webb Svem LUat*Company Facility
Salem Massechwetti
This is a report Gn our inspection of the referenced building with hill.emphasis on 000apaMf,
so*-s We bll ahem the
present carsiitiai of the building is so poor ret not to warrent any
y P► perm&NM.repairs
The remedlal direatives eheg1l on the enclosed plane aro owwy of a temporary Mahn to insure
*
' They ars*NY affeodve K no addlOW1111 bedkg is introduced beyond those required for
operations.
Softer room roof framing requires►eirdotanp. ;Tttis srganesr shell obrrootive merit in thq
ares while snoring Opsrsjoft Wa underway,
We will be making periodic inspections to MGM the QvWN requiromenle We met,and keep
You Informed of same.
If you rlsed additional information, pleaf0 advise.
Reipwujjy e
fees •�.
Robert M. RumfWo, « , *c
Robes M.Rumo rh O
as Mr, leo Zeis•Trustee
9 Webb Street
Salem, Massachusetts 01970
AUG 11 2000 14:35 FR DCPO-CONST SERV 617 727 4043 TO 819787409846 P.04i13
P. 04
710 CMR: STATE BOARD OF EUII.DWO PI TIONS AND STANDAM
MASSACHUSETTS STATE BURmilgo com
leit eppeam that Much be"*oraeuateN would be am of such dan'obtia0. *0 told bulldoo amw
aapa®1411Y unsak N em of fns it"be donned its eaa0 such hr to be knded ro MOM vhtlt
building es sill y mei b� end the adjanoa Fades by 11001141*IL Tho Met;Mord
y 1llht in a enlapiaaua Place 0114190 bwund abap oomdOm■sat upon the land
upon its exterior waft a two of its dVtleroue Upon which the owso M is I000K Ntd slop be
condition, v"owl net be removed or delbced G*raed in an 106011 of conned oed adt owaR
whhow;ZrltY sae bin chap,ibr*my days eatd epowe oto&retLeal or
1211 Unmoved m reawns struetmt nth a0�If*
�e totwa4 be MAW by a Me
Pam"a npp6ed sh111 be dlow.d d 12:00 afar in Meadow M 1 ah 0&1 Il't The rolwme PrAda14
to
of rh day tolto ram the service of the notice it par hr tush debt 1d the tF Of Mn far
or m01iiltcee besin to mmov0 atilt bw101gt9 or Nrea w Much debt sha apply to 00'�tdUrad to in aria
1014 or-to mea it mum and he ad ntaos, a� that da
"lay 0uaalad Moor speedo to mak it'odb or ea haromder in phta o!0114 omdri aha➢
remove It or to mdn it wauK but d the bps adCcUt 1e� a beard of
b ardof is in Iffect.
or ao regalrw•tVd dtlm mayor or ulec0t mr w 0 ballbe u=m use or
neer, the busd'ms o6teisl ma
uponthopvMinswitheseeasestywurknaaand aruoPayanthereofforsaypurpee
aa&ordcwlished cthbsamisterns and am ata& oeetoboNWZ 121.E Beow-7 of paremet to nua
Pat up for the Pratratin ot t�na a proper Gmee dangs"M struat14re Or mda M .ate:
qdplaenlry,ortobemade NummosaftUteProvislowof710Oa122.ae
aeaura ,
ft=. y9rim10 by such order May have the
131.0 Furore to remove or make sduetm safe, o<�ad by M&L.& 119,12:provided
1tNaf°mumps restses or
Ifo'awuer efsuch ae�so a to Naderwn to ,0.do* o139,1r2p orae 010
the rsgahamms of arch nth wigtN Vee�a sd 71070��r; red previd04 fivtbff drat this
take W* and ordered�e�a not rueda vq or Mecum thou not Pry the ft or team flom
too ilvanBas ahlp be nwd b0eutude�aa!'oY of taeoverinl tba&&ihft prevlded is aid 710'0A
a dry. of s amsitrtryt in 121,s Gan Ilio dot.of the service of the of*w
depsrtttuat, bedef ted (M �GLe, fie,NJM the order la romdkd by dw Jdey.
a. 148, 6 I, and one disitsgrea0d Peron to be 780 CU U10 B OA11D(W AppEAL9
aappohnad by the MOMS ovoid;sad.N a town of =1 Stub BeUdhss Cede
d'"rest0ed Pawl to be,the had p i and os BMW be sedans akar PatttuM foto� CUR
of"NAL in 6a absence at OftM tmow Viers 1211% v lm ver'Is Isuk"d by an ipterpretedae,
de inabs C e dtc mayor or s � 70 erraniidotthedry room
dedpiaa one w more otfioera Q Oft
prions i0 place or the *Mean so tamed as or"MCA or 4gaey or nodal ofdn State,
member of Maid bond. A wftft rep" emh �adathdluapaa or eaf0reen ent 0f T19
wney Ihd be Made,and a amthereof 0avad m or ay of its role,or noddlma, excep" up'
etch afar, emmined coder, say qqW t rK*m 1114 Store
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slratturew itaucd m om or abandoned lVhoNvlsWrlevedbyagWaPeat1604�
direction or lailars to Me under
dutleroas 780 CUR or tohe
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after oondism roWW or nepteR rhe bat ft astwor n of too or
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sau00rrr,ON land on addoh it 11 nds or the tbulliu9aur ave 14101 *0^01ed thereby ha ra0 then apPesi 00 the state
lad or bvildbr8u,with v eh a m;nmooe ea he BUIIdin1 oda Appew Bray a Prodded In
raqulrs,and enure dor ams;attd rVn � MOCA 12LO.
addunder pertmaa ptbvisiottsma of hEO,4 Wiq Code Appeals
ie is directly b re an
WA MY armee such
any 0mnt of oaarPnt tlenMnS � welor,�a'' dor Mem as
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29
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AUG 11 2000 14:35 FR DCPO-CONST SERV 617 727 4043 TO 819787409846 P.03i13
.......-ere.-..� v+ .av rri *H6M '1 BUILDING DEP 978 740 9846 P. 03
Cttp of Salem, 01419at'jugettg
.Dublin grapertp Department
191111binB separtment
eine skim Oren
(978)745.9585 Ext. Sep
Peter Strout
Director of Public Property
Inspector of Buildings
Zoning Enforcement Officer
3122199
l-I1 Cousins St.Realty Trust
Donna Colitz
RE: 1-11 Cousins,St
Dear Me. CoUtz:
011 May 15 2000 The City of Sale;n entered the property at 1-11 Cousins St with the
owners permission and eonduotod "Survey Board"inspection aocosrtiug:to 780 CUR121.4 Failure to remove oramake structaee safe, As a result the board found the building
to be extremely dangerous and in need of immediate repair or the removal of the
structure.
The City HWlding Department has been trying to work whb the owners pan
prant
to provide us with a Suitable plan to proceed with making the building Safe and have
MO tng,A se.This point
we a has been going on.for several years with the building further
had
failing.At this point we are ferc�d to invoke 121.4 and start the prooeseimmediately.
Since el
9�j
Peter Strout
Building Commissioner
RUG ll 2000 1434 FR DCPO-CONST SERV 617 727 4043 TO 819787409846 P.02/13
` AUG-19-09 94 :59 PM SALEM BUILDING LEP 976 740 9046 P. 02
UP of &aCetn, ACanacbuattg
Agublit fropertp Department
99uilbing Department
®nr 6111M earn
(IM 740.9895 txt.300
Peter Strout
Director Of Public Property
Inspector of Buildings
Zoning Enforcement Officer
Mr.George Mathews
Division of Capital Asset Management and Maintenance
1 Ashburton Place
Room ISOS
Boston,Ma. 02108
Dear Mr. Mathews:
As per our conversation today relative to the"Richard Leather Building,,at 1-11 Cousins
St in Salem. After numerous Complaints from neighbors concerned about the eondition
Of the above mentioned building and a structural report that states the need for extensive
Structural repairs,the City Of Salem and the building department conducted a board of
survey in accordance with the Mass. Building code and found the building to be in
serious condition. At that time I invoked 780 CMR 121.4 Failure to remove or make
structure safe. As the code reads the owner has the ability to matte the building safe or
remove the structure, this did not happen. At this point the City Of Salem has the right to .
retain a demolition firm and remove the building.
Enclosed you will find some of the pertinent correspondence we have had with the
owners. This is a serious condition and needs to be dealt with immediately.
Sineerel
4Emergency Waiver of addvadshV
or strout rt quirem eM under MGL 0.149
Building Commissioner w'44 (6) is haebY Xt
�urjr,�,7 �''�pr of A 1, 2cJ v J
0" 1 (yvii�%7 r-
Amoclate Genaal Counsel
&Mgency Waiver No. 5�
L
CITY OF SALEM, MASSACHUSETTS
BOARD OF APPEAL CITY OF SAk I1, MA(
m x 120 WASHINGTON STREET, 3RD FLOOR TY OF 'S LHM,
SALEM, MA 01970 j�
' Iq
TEL. (978) 745-9595
FAX (978) 740-9846
STANLEY J. USOVICZ, .JR.
MAYOR lel JUN 21 A 0 58
DECISION ON THE PETITION OF MICHAEL O'BRIEN MANAGER COUSINS LLC
REQUESTING VARIANCES FOR THE PROPERTY LOCATED AT 1-11 COUSINS
STREET R-2
A hearing on this petition was held June 16, 2004 meeting with the following Board
Members present: Nina Cohen Chairman,Bonnie Belair,Nicholas Helides, Stephen
Hams and Richard Dionne. Notices of the hearing were sent to abutters and others and
notices of the hearing were properly published in the Salem Evening News in accordance
with Massachusetts General Laws Chapter 40A.
At the request of the petitioner's Attorney John Keilty,the Salem Zoning Board of
Appeal voted 5-0,to grant leave to withdraw this petition without prejudice requesting
Variances from lot size,width, front and side setbacks to subdivide existing parcel into 4
nonconforming for the property located at 1-11 Cousins Street located in an R-2 zone.
GRANTED LEAVE TO WITHDRAW WITHOUT PREDUOICE
JUNE 16, 2004 �
Nina
Cohen, Chairman Cs(��
Board of Appeal
A COPY OF THIS DECISION HAS BEEN FILED WITH THE PLANNING BOARD
AND THE CITY CLERK
Appeal from this decision, if any, shall be made pursuant to Section 17 of the
Massachusetts General laws Chapter 40A, and shall be filed within 20 days after the date
of filing of this decision in the office of the City Clerk. Pursuant to Massachusetts
General Laws Chapter 40A, Section 11, the Variance or Special Permit granted herein
shall not take effect until a copy of the decision bearing the Certification of the City Clerk
that 20 days have elapsed and no appeal has been filed, or that, if such appeal has been
filed, that is has been dismissed or denied is recorded in the South Essex Registry of
Deeds and indexed under the name of the owner of record or is recorded and noted on the
owner's Certificate of Title.
Board of Appeal
09/27/00 WED 14:92 FAX 9787400072 JOHN D KEENAN 121001/004
City _ 222 Essex Street
•al Salem, Massachusetts 01970
• hn Tel: 978-741-4453
Asst. City • • Fax: 978-740-0072
Fax
To: Tom St.Pierre Frons JDK
Fa7c 74069M Pages: 4
Phoaee 741-4453 Date: 27Septemder200009/27/00
Re: Richards Leather CQ
❑ Ilrgont X For Review 0 Please Comment 0 Please Reply ❑Please Recycle
e Comments;
Tom:
As discussed this morning,please review for accuracy, please make any edits on this and fax
back at 740,0072. If okay,please let me know. I will need you to sign an original tomorrow
morning first thing. We will be due in court at 2:00 p,m in Newbaryport again.
Thanks.
09/27/00 WED 14:32 FAX 9787400072 JOHN D KEENAN U002/004
COMMONWEALTH OF MASSACHUSETTS
ESSEX, SS SUPERIOR COURT DEPARTMENT
C-A. NO.: 00-0886-B
ONE COUSIN'S STREET REALITY )
TRUST, Donna Colitz, Trustee )
Plaintiff, )
vs. )
CITY OF SALEM, )
Defendant. )
AFFIDAVIT OF THOMAS ST. PIERRE
I, Thomas St. Pierre, under oath, do hereby state and depose:
1. My name is Thomas St. Pierre and I am an Assistant Building Inspector for the
City of Salem.
2. As Assistant Building Inspector, one of my responsibilities has been overseeing
the demolition of the former Richard's Leather Factory at 1-11 Cousins Street in
Salem, Massachusetts.
3. On January 25, 2000, 1 sent notice to Trustee Donna Colitz through her attorney
that the building was especially unsafe in case of fire, I instructed them to either
make the building safe or begin demolition. (See attached copy).
4. Although the wet sprinkle system was eventually repaired and then replaced by
a dry system, the building for structural reasons remained a hazard to public
safety —especially to the immediately surrounding neighbors and fire fighters.
5. As months passed and the owner continued to fail to address the problems, on
May 15, 2000, the City of Salem conducted a"Survey Board" inspection in
accordance with the State Building Code (780 CMR 121.4). The Board included
Building Inspector Peter Strout, Salem Fire Chief Robert Turner Assistant
City
Engineer Michael Collins and Frank DeFalco, Principal of Hobbs Endeavor
Corporation.
6. The Board determined that building was in extremely dangerous condition and
had to be immediately repaired or demolished. Notice of these findings was
provided to the trustee.
1
P5 09/27/00 WED 14:02 FAX 9787400072 JOHN D HEENAN U003/004
7. As we began the demolition process, the Trustee sought court protection to stop
the demolition.
8. On May 23, 2000, 1 attended the hearing on motion to stop us from tearing this
building down. Judge Howard Whitehead denied the motion.
9. On the following days, May W and 251", the beginning phases of preparation
for demolition began. This first phase included removal of two outdoor,
underground holding tanks, one for solvents and one for oil.
10. As we continued the project, property manager Fred Hutchison asked to meet
with me and Building Inspector Peter Strout to see if he could do the actual
demolition work himself to save money. It was anticipated that the project would
cost from $250-300,000.
11. Through discussions, we ultimately agreed in mid-June 2000 that Mr. Hutchison
could do the demolition R he began immediately and had the job completed by
August 11, 2000.
12, By July 20, 2000, as Mr. Hutchison had not done anything on the project— not
even fencing it off—we decided to hire an independent company to do the work.
13. We worked with Beta Engineering to determine what abatement would need to
be done prior to actual demolition of the structure.
14. We have contracted with Costello Dismantling, Inc. of Middleboro,
Massachusetts to perform the abatement and demolition.
15. The abatement, approved and supervised by D.E.P., is 90% completed.
16. Outside abatement is completed. All of the asbestos shingles have been
removed. The windows and sashes have been removed as the caulking
contained asbestos.
17. 1 expect the remaining abatement inside will be completed by the end of this
week and the building will be ready for demolition next week.
18. All the utilities have been shut off.
19. At this point,with the exterior exposed and the windows removed, the building is
even more dangerous should afire break out, Firefighters will not go into the
building at this time.
20. Our total costs with abatement and demolition will be approximately
$287,000,00.
2
r
09/27/00 WED 14:03 FAX 9787400072 JOHN D KEENAN IM004/004
21. 1 have reviewed Rene Mugnier's report on this structure and agree with his final
analysis that states, "it is possible that this building could be remodeled and
brought back to a proper structural condition" or"economic considerations" may
lead to demolition and rebuilding. At a cost, it is possible that any building
could be restored. It is not feasible for this building as was concluded by Robert
R. Rumpf in his structural review of this building over two-and-a-half years ago
stating, "We believe the present condition of the building is so poor as not to
warrant any financially viable attempt at permanent repairs." (See Rene Mugnier
Report, p. 3 and attached copy of Rumpf Report of 01/07/98).
22. Public safety concerns require that we be allowed to complete the demolition of
this extremely dangerous structure—a structure that has been made even more
dangerous by the substantial preparation for the demolition process itself.
SIGNED UNDER THE PAINS AND PENALTIES OF PERJURY THIS 277" DAY OF
SEPTEMBER, 2000,
Thomas St. Pierre, Asst. Bldg. Insp.
3
f '
1
INDEMNIFICATION AGREEMENT
FOR REMOVAL PROPERTY
FROM 1-11 COUSINS STREET, SALEM
WHEREAS, the City of Salem has decided to demolish the property at 1-11 Cousins
Street, Salem due to its unsafe condition; and
WHEREAS, the City of Salem has almost completed preparation for demolition and
expects same to commence next week; and
WHEREAS, the owner of the property, One Cousins Street Realty Trust, by and through
its agent,.property manager Frederic Hutchison, is fully aware of the condition of the
premises; and.
WHEREAS, the property owner has filed suit in Essex Superior Court(Civil Action No.
00-0886-B) for wrongful demolition of said property; and
WHEREAS, property owner, through its agent, Frederic Hutchison desires to remove 11
some remaining nonfixture items of value, specifically tacking boards arA boiler controls', S�r��K�(
k Val°C
NOW, THEREFORE, the parties enter the following agreements as to property owner's
removal of said items-
,W
tems•
-urate s- Mar,��
The City of Salem will allow Frederic Hutchison access to the property on F+xiday
October 2#, 2000 betweenose a.m. and n"n for the sole u of removing
p rp said
items listed herein. I 1ul,3G arF q7z-
2-q. So
v� One Cousins Realty Trust shall at all times relieve, indemnify, protect and save harmless
the City of Salem, and each of its boards, officers (including but not limited to the
Building Inspector and Fire Chief) and employees from any and all claims and liability
for death of and injury to persons or property damage that may arise from or be caused by
the aforesaid removal procedure. Indemnification shall include any costs of defense and
reasonable attorney fees arising from same.
Dated this 19th day of October, 2000.
City of Salem,
eter Strout, Salem Bldg. Insp. Donna Colitz, Truye
V v e Cousins Street
Ree Trust
John . Keenan, City Solicitor es ogal, Counsel for
One sins Street
R ty Trust
Cei c r\,
0 44\,-e- Sk-Q-e+`
Certificate No: 634-06 Building Permit No.: 634-06
Commonwealth of Massachusetts
City of Salem
Building Electrical Mechanical Permits
This is to Certify that the RESIDENCE located at
Dwelling Type .......______
0001 COUSINS STREET in the CITY OF SALEM
--------------------
---------------------------------------------------------
-------------- TowNCity Name--------- ....-..-_
-----
Address __.. ________.
IS HEREBY GRANTED A PERMANENT CERTIFICATE OF
OCCUPANCY
ONE COUSINS STREET
This permit is granted in conformity with the Statutes and ordinances relating thereto, and
expires _ -- -
--------- unless sooner suspended or revoked.
Expiration Date
Issued On: Thu Feb 15,2007 -----'-
GeoTMS®2007 Des Lauriers Municipal Solutions,Inc. ----------------_____ ---------_____- ----------- _____-._.....
CITY OF SALEM
BUILDING PERMIT
63Z
0001 COUSINS STREET X06
GIs#: 1633 COMMONWEALTH OF MASSACHUSETTS
Map: 41
Block: CITY OF SALEM
Lot: 0154`
Category: 104 New Two family
Permit# 632 BUILDING PERMIT
Project# JS-2006-1305
Est. Cost: $110,000.00
Fee Charged: $1,100.00
Balance Due: $.00 PERMISSION IS HEREBY GRANTED TO:
Const.Class; Contractor: License:
Use Group: EMERY CONSTRUCTION CORP
Lot Size(sq.ft.): 23730
, Owner: CLOSE COUSINS LLC
Zoning: R2
Units Gained. Applicant: EMERY CONSTRUCTION CORP
Units Lost: AT: 0001 COUSINS STREET
Dig Safe#:
ISSUED ON: 07-Feb-2006 AMENDED ON: EXPIRES ON: 07-Aug-2006
TO PERFORM THE FOLLOWING WORK:
632-06(7 COUSINS STREET UNIT B)CONSTRUCT NEW HOME MODULAR TJS
POST THIS CARD SO IT IS VISIBLE FROM THE STREET ((
Electric Gas Plumbing Building
Underground: Underground: Underground: Eacava+inn: — �- -
Service: Meter: p Footings:
Rough: O /I/DG Rough:Or� Y�%i.D�4G u�^�®G Rough: OW91"SI&JO(r Foundation:
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Meer: Oil:
House# Smoke: Final:F, 1/l� o/c. /� 0?
Water: Alarm: 0 /Y16 t? Treasury: ! UU��` �l
Sewer: Sprinklers:
THIS PERMIT MAY BE REVOKED BY THE CITY OF SALEM UPON V LATION OF ANY OF`
RULES AND REGULATIONS.
Signature:
Fee Type: Receipt No: Date Paid: Check No: Amount:
BUILDWGREC 2044:001:89?. 07-Feb-06 6317 $1,100.00
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GVE AD
CITY OF SALEM
BUILDING PERMIT
Certificate No: 630-06 Building Permit No.: 630-06
Commonwealth of Massachusetts
City of Salem
Building Electrical Mechanical Permits
This is to Certify that the CONDOMINIUM located at
----------------
-------------------------------------
Dwelling Type
0001 COUSINS STREET in the CITY OF SALEM
Address TowrVCity Name
IS HEREBY GRANTED A PERMANENT CERTIFICATE OF
OCCUPANCY
UNIT#9
This permit is granted in conformity with the Statutes and ordinances relating thereto,and
expires - ................ unless sooner suspended or revoked.
Expiration Date
--------------------------------------------------- ---------------------------
Issued On:Tue Jul 25,2006 ---------- ------------------__- ------
GeoTMS®2006 Des Lauriers Municipal Solutions,Inc. -------- _ - -- - __ - --- - - -- ----------
CITY OF SALEM
BUILDING PERMIT
0001 COUSINS STREET '633.06
GIs#: 1633 COMMONWEALTH OF MASSACHUSETTS
Map: 141
Block: ICITY OF SALEM
Lot: 10154
Category: 104 New Two family
1'ermiE# 632-06 BUILDING PERMIT
Project# JS-2006-1305
Est.Cost: $110,000.00
jFeeCharged: $1,100.00
Balance Due: $.00PERMISSION IS HEREBY GRANTED TO:
Const.Class: Contractor: License:
Use Group: EMERY CONSTRUCTION CORP
Lot Size(sq.ft.): 23730 < Owner: CLOSE COUSINS LLC
Zoning: R2
Units Gained: Applicant: EMERY CONSTRUCTION CORP
Units Lost: A T: 0001 COUSINS STREET
Dig Safe#:
ISSUED ON: 07-Feb-2006 AMENDED ON: EXPIRES ON: 07-Aug-2006
TO PERFORM THE FOLLOWING WORK:
632-06(7 COUSINS STREET UNIT B)CONSTRUCT NEW HOME MODULAR TJS
POST THIS CARD SO IT IS VISIBLE FROM THE STREET
Electric Gas Plumbing Building
Underground: Underground: Underground: A Excavation:
Service: Meter: ����/) Footings:.
Rough:rrr111 AA Rough: � - Ar;•�, ��� Rough: Jl 0�� / Foundation:
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Insulation:
Meter: OB: !!
Final: K P
House If Smoker
0� Treasury:
Water: Alarm:
Sewer: Sprinklers:
8 hyl coS5 (^
THIS PERMIT MAY BE REVOKED BY THE CITY OF SALEM UPON VI ATION OF ANY OF IT +
RULES AND REGULATIONS.
Signature:
Fee Type: Receipt No: Date Paid: Check No: Amount:
BUILDING REC-2006-001892 07-Feb-06 6317 $1,100.00
GeoTMS®2006 Des Laurters Municipal Solutions,Inc.
Certificate No: 629-06 Building Permit No.: 629-06
Commonwealth of Massachusetts
City.ofGalem
Building Electrical Mechanical Permits
This is to Certify that the CONDOMINIUM located at
Dwelling Type
0001 COUSINS STREET in the CITY OF SALEM
----------------------------------------- - - --------------- -------------------Town/City Name
IS HEREBY GRANTED A PERMANENT CERTIFICATE OF
OCCUPANCY
CONSTRUCT NEW CONDO'S UNIT#11, i,
This permit is granted in conformity with the Statutes and ordinances relating thereto,and
9
expires _ _ unless sooner suspended or revoked.
----- -- --------- -
Expiration Date t.
-_-_-------------/�---- ----_/�-y--- ----- -_
Issued On: Toe Jun 27,2006 ---- --- -- - - - f's-� -
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GIS#: 1633 COMMONWEALTH OF MASSACHUSETTS
Map: 41
Block: CITY OF SALEM
Lot: 0154
Category: 104 New Two family
Permtt# 62905 BUILDING PERMIT
Project# JS-2006-1302
Est. Cost: $110,000.00
Fee Charged: $1,105.00
Balance Due` $.00 PERMISSION IS HEREBY GRANTED TO:
Const.Class: Contractor: License:
Use Group: EMERY CONSTRUCTION CORP
Lot Size(sq.'ft.): 23730
Zoning: R2 Owner: CLOSE COUSINS LLC
Units Gained: Applicant: EMERY CONSTRUCTION CORP
Units Lost: -AT. 0001 COUSINS STREET
Dig Safe#:
ISSUED ON. 07-Feb-2006 AMENDED ON. EXPIRES ON: 07-Aug-2006
TO PERFORM THE FOLLOWING WORK.
629-06(1 COUSINS STREET UNIT A) CONSTRUCT NEW HOME MODULAR TJS
POST THIS CARD SO IT IS VISIBLE FROM THE STREET
Electric Gas Plumbing
rExcavtauildinUnderground: Underground: Underground: - an:
(Service: Mel �������I- - -- �q� Footings:-
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Douse# Smoke: ' Final: Qlk Z/ �N
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Water: Alarm: 1, .I I
Sewer: Sprinklers: `
M_eA co os F-1
THIS PERMIT MAY BE REVOKED BY THE CITY OF SALEM UPQIO VIOLATION OF ANY
��
RULES AND REGULATIONS.
«4
Signature:
Fee Type: Receipt No: Date Paid: Check No: Amount:
BUILDING '- REC-2006001889w•. 07.F.eb-06 6317 $1,105.00
upon cGrrpi< tloji of v,.xkplamse call
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City of eSalem,Massachusetts cnt:c a$20.00
Paid
9 FIRE DEPARTMENT - FIRE PREVENTION DIVISION Fee
29 Fort Avenue
Salem, Massachusetts 01970-5232 6/12/06
(978)745-7777 (nate)
CERTIFICATE OF COMPLIANCE
M.G.L.Chapter 148 Sections 26F, 26F1/2
This Certifies that the property located at 11 y Cousins Street
has been equipped with approved smoke detectors,and carbon monoxide alamis and was found to be in compliance with
Massachusetts General Law Chapter 148 Sections 26F,26F1/2 and 527 CMR 31,et seq.
Owner Close Cousins LLC
(Pull none of lxrxnn.firm or......anion granted pcnnin
SMOKE DETECTORS REQUIRE ANNUAL MAINTENANCE AND CLEANING
Type of Occupancy: ❑ One family Dwelling
❑ Two Famlily Dwelling
xxJdxCondominium Unit #, 11
(Signatu flicial granting permit)
NOTICE: Certificate is NOT VALID, for sale or transfer FireIn ector
of real estate, 60 days atter date of issue. (Title)
Head of Fire Department
Certificate No: 631-06 Building Permit No.: 631-06
Commonwealth of Massachusetts
City of Salem
Building Electrical Mechanical Permits
This is to Certify that the CONDOMINIUM located at
Dwelling Type
0-001-COUSINS.-STREET in the CITY OF SALEM
Address Town/City Name
IS HEREBY GRANTED A PERMANENT CERTIFICATE OF
OCCUPANCY
7 COUSINS STREET
This permit is granted in conformity with the Statutes and ordinances relating thereto,and
expires ...... unless sooner suspended or revoked.
Expiration Date
Issued On:Fri Jun 23,2006
----- --- ---
----------------
GeoTMS®2006 Des Lauriers Municipal Solutions,Inc. -------------------------------------------------------------------------------
CITY OF SALEM
BUILDING PERMIT
9,e1,J 7
0001 COUSINS STREET 631-06
GIS#: 1633 COMMONWEALTH OF MASSACHUSETTS
Map: 41,
Block: CITY OF SALEM
Lot: 0154
Category: 104 New Two family t
Permit# 631-06 BUILDING PERMIT
Project# JS-2006-1304
Est.Cost: $110,000.00
Fee Charged: $1,100.00
Balance Due: $.00 PERMISSION IS HEREBY GRANTED TO:
Const.Class:' Contractor: License:
Use Group: EMERY CONSTRUCTION CORP
Lot Size(sq.ft.): 23730
Zoning: R2 Owner: CLOSE COUSINS LLC
A licant. EMERY CONSTRUCTION CORP
Units Gained: PP
Units Lost: AT: 0001 COUSINS STREET
Dig Safe#:
ISSUED ON: 07-Feb-2006 AMENDED ON: EXPIRES ON: 07-Aug-2006
TO PERFORM THE FOLLOWING WORK:
631-06(5 COUSIN STREET UNIT A)CONSTRUCT NEW HOME MODULAR TJS
POST THIS CARD SO IT IS VISIBLE FROM THE STREET
Electric Gas Plumbing Building
Underground: Underground: Underground: Excavation:
Service: i Meter: (� Footings:
i
Rough: /// ,./ Rough: ,C I/ rly Rough �i Foundation:
Final: / 119k�/y[ Final V t! uuu"' Fina G" Rough Frame:
(((!ll���/ (/P / Fireplace/Chimney:
D.P.W. Fire He [h
Insulation:
Meter: Oil: \ — /111 I0
/�/
House# Smoke: Final: 0K 10 6 ,
Treasury:
Water: Alarm: rr ^^ )t
Sewer: Sprinklers:
t VW1Co r s%
THIS PERMIT MAY BE REVOKED BY THE CITY OF SALEM U O�N . RLA�TIO O S
RULES AND REGULATIONS.
Signature:
Pee Typyq„ •,,,. Receipt No: Paid: Check No: Amount:
BUW4 IlV(,� f�Ti00189;15; 0-Feb-06 6317 $1,100.00
a
upon complation of vlork, phase call
745-5596 Er..f. 385
GeoTMS®2006 Des Lauriers Municipal Solutions,Inc. -
CITY OF SALEM
BUILDING PERMIT
Certificate No: 632-06 Building Permit No.: 632-06
Commonwealth of Massachusetts
City of Salem
Building Electrical Mechanical Permits
This is to Certify that the CONDOMINIUM located at
Dwelling Type
-0001-COU-SINS—STREET in the CITY OF SALEM
Address TowNCity Name
IS HEREBY GRANTED A PERMANENT CERTIFICATE OF
OCCUPANCY
UNIT 5
This permit is granted in conformity with the Statutes and ordinances relating thereto, and
expires unless sooner suspended or revoked.
Expiration Date
------------- tri0i ---
l I
Issued On: Thu Jan 11,2007 / �I yJ � ,,
GeoTi 2007 Des Lauriers Municipal Solutions,Inc. --------------------------------------
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13i le) /So%
0001 COUSINS STREET 632-06
GIs#: 1633 COMMONWEALTH OF MASSACHUSETTS
Map: 41
Block: CITY OF SALEM
Lot 0154
Category: 104 New Two faQily
Permit# 632-06 BUILDING PERMIT
Project# JS-2006-1305
Est. Cost: $110,000.00
Fee Charged: $1,100.00
Balance Due: $.00 PERMISSION IS HEREBY GRANTED TO:
Const.Class: Contractor: License:
Use Group: EMERY CONSTRUCTION CORP
Lot Size(sq.ft.): 23730
Owner: CLOSE COUSINS LLC
Zoning: R2
Units Gained: "Applicant. EMERY CONSTRUCTION CORP
Units Lost: AT: 0001 COUSINS STREET
Dig Safe#:
t
ISSUED ON: 07-Feb-2006 AMENDED ON: EXPIRES ON. 07-Aug-2006
TO PERFORM THE FOLLOWING WORK:
632-06(7 COUSINS STREET UNIT B)CONSTRUCT NEW HOME MODULAR TJS
POST THIS CARD SO IT IS VISIBLE FROM THE STREET
Electric Gas Plumbing Building
Underground: Underground: Underground: Excavation:
Service: Meter: Footings: +'
Rough: A Rough: (/1/ Rough:1/ter 0 I0/" / Foundation:
Final:)1z1 11'1 Final ✓ll U Final: IV Rough Frame:
r/�� ` 111 Fireplace/Chimney: !►
D.P.W. Fire Heath
Meter: OB: Insulation: _..
House It Smoke: �(I Final: Ok C�/
a ��( / e
Water: Alarm: � f Treasury:
Sewer: Sprinklers:
THIS PERMPT MAY BE REVOKED BY THE CITY OF SALEM UPON V ATION OF ANY OF IIS 'k
RULES AND REGULATIONS. ✓G/ tom -
Signature:
Fee Type: Receipt No: Date Paid: Check No: - Amount:
BUILDING REC-2006-001892 07-Feb-06 6317 $1,100.00
UP-C-D Cornni ,j;otn c 1
;-le_, e call
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GcoTMS®2006 Des Lauriers Municipal Solutions,Inc.
novE AD
CITY OF SALEM
BUILDING PERMIT
January 10, 2007
We, Gary LaParl and Craig A. Collemer, are the buyers of Unit 5 at 5 Cousins
Street, Salem, MA 01970. We certify that we are not currently nor will we ever
use the room on the lower level/basement level of this address as a bedroom.
//-07Z-
Gary La arl Date
( ;z / j-ll
� .
raig emer Date
•
COMMONWEALTH OF MASSACHUSETTS
• ESSEX, SS SUPERIOR COURT DEPARTMENT
C.A. NOs.: 00-0886-B
ONE COUSIN'S STREET REALITY )
TRUST, Donna Colitz, Trustee )
Plaintiff, )
vs. )
CITY OF SALEM, )
Defendant. )
•
DEFENDANT CITY OF SALEM'S MEMORANDUM IN
OPPOSITION TO PLAINTIFF'S MOTION TO AMEND THE COMPLAINT AND
• FOR RECONSIDERATION
OF MOTION FOR RESTRAINING ORDER
Now comes the Defendant City of Salem in opposition to the Motion to Amend
• and for Reconsideration of Motion for Restraining Order.
BACKGROUND
Plaintiff, having lost his previous Motion for Injunctive Relief,' now seeks a
•
second bite at the apple some four months after the first denial. Plaintiff with support of
an engineer, who "inspected" the building only from the outside and concluded that it is
• "possible" that the building could be saved, now seeks an order halting the City of
Salem's demolition of same. Plaintiff also seeks to amend its original Complaint by
seeking damages for wrongful demolition.
• STATEMENT OF FACTS
The rather substantial history of this building's structural deficiencies is as
� • t
•
follows:
• July 9, 1997: Salem Building Inspector Leo Tremblay requests the owner of
the property retain a structural engineer to review the existing condition of
the property. Abutters and the Health Department had complained. (See
attached Exhibit W').
• October 28, 1997: As owner of the property still failed to take any corrective
action or even hire a structural engineer, Building Inspector informs owner he
• considers building unsafe for occupancy. (See attached Exhibit "B").
• January 7, 1998: Structural engineer Robert Rumpf reports "that the present
condition of the building is so poor as not to warrant any financially viable
•
attempt at permanent repairs." (See attached Exhibit "C" Affidavit of Thomas
St. Pierre with exhibits). On Exhibit 3 of his report, Mr. Rumpf identifies
twenty (20) feet of load bearing wall removed.
•
• January 28, 1998: Owner of building requests building permit to make
temporary repairs to enable occupancy through the end of June 1998 at
• which time it would be determined if viable to repair or to demolish. (See
attached Exhibit "D").
• September 9, 29, 1999: Owner of Richard's Leather and the Building
•
Inspector invited to address the City Council on issues involving condition of
the property. (See attached Exhibit "E").
• • January 25, 2000: Assistant Building Inspector Thomas St. Pierre instructs
owner of property that it is especially unsafe and that the owner should
1 On May 23, 2000, this Court (Whitehead, 3.) denied Plaintiff's Motion for Injunctive Relief.
•
2
• A
•
contact the office to inform of plans to make safe or demolish. (See attached
Exhibit C, Affidavit of Thomas St. Pierre, 13 and attached exhibit).
• • May 15, 2000: As owner had still failed to take any corrective action, Survey
Board consisting of the Building Inspector, Fire Chief, Assistant City
• Engineer and William Hobbs as a disinterested party, inspected the premises
and determined it to be extremely unsafe. (See attached Exhibit "F"). This
inspection revealed a total lack of lateral bracing in the structure causing it to
• list several inches towards Cousins Street.
• May 22, 2000: Building Inspector Strout notified owner of Board's findings
and informed that he would proceed to demolish the structure in accordance
• with 788 CMR 121. (Exhibit "F").
• May 23, 2000: Judge Howard Whitehead denied Plaintiffs first effort to seek
• injunctive relief. (See attached Exhibit "C", ¶ 8).
• May 24, 25, 2000: The City of Salem begins the demolition process by
removing two underground storage tanks. (See attached Exhibit "C", ¶9).
• • June 2000: Property manager Fred Hutchison requests that he be allowed
to demolish the building himself to save on the costs anticipated at $250-
300,000.00. (See attached Exhibit "C", ¶ 10). City agrees to allow Mr.
•
Hutchison to do the demolition so long as he started immediately and
completed by August 11, 2000. (See attached Exhibit "C", % 11 and attached
• Exhibit "G").
• July 20, 2000: As Mr. Hutchison had failed to take any action, City of Salem
informs him that they will hire an independent contractor to do demolition
•
3
•
•
work. (See attached Exhibit "C", 112 and attached Exhibit "H").
• August 2000: Building Inspector sought contractors and determined what
• abatement was necessary to demolish the building safely. (See attached
Exhibit "C", 17 13, 14). Costello Dismantling, Inc. hired to abate and
demolish building. (See attached Exhibit "I")
•
• September 2000: Costello abates building by removing asbestos shingles,
windows and sashes. (See attached Exhibit "C, ¶ 16).
• • September 25-29, 2000: Costello will complete abatement outside and
inside. (See attached Exhibit "C", 117).
• October 2, 2000: Building ready for demolition. (See attached Exhibit "C", ¶
• 17)
• October 31, 2000: Demolition completed or liquidated damages ($500.00
per day) begin against Costello. (See attached Exhibit "I" at p. 22).
•
ARGUMENT
• Plaintiff Should Not be Allowed to Amend Its Complaint.
As was argued in the first hearing, Plaintiff continues its misplaced reliance on
the position that the City of Salem was acting pursuant to the nuisance provisions of
•
Mass. Gen. L. c. 139, § 1. (See attached Exhibit "J" for pertinent statutes (Mass. Gen.
L. c. 139 and 143 and 780 CMR 121 State Building Code Unsafe Structures). The City
• of Salem acting through its Building Inspector was enforcing the provisions of 780 CMR
121 which are established by Mass. Gen. L. c. 143, §§ 6-10. Both the State Building
Code and Chapter 143 provide that a person aggrieved by an order of the Building
•
4
II •
•
Inspector to make safe or demolish may pursue the remedy prescribed in Mass. Gen. L.
c. 139, § 2. (See Mass. Gen. L. c. 143, §10 and 780 CMR 121.6)(copies attached as
• Exhibit "J").
Chapter 139, Section 2 in pertinent part provides, "A person aggrieved by such
order may appeal to the superior court for the county where such building or other
•
structure is situated, if within three days after service of such attested copy upon him,
he commences a civil action in such court. . . . [such actions] shall have precedence
• over any case of a different nature pending in said court and then in order for trial."
(emphasis added). Plaintiff did file a Complaint seeking injunctive relief but did not file
a civil action within three days seeking relief pursuant to Chapter 139, Section 2. Some
• four months after being notified by the City of Salem that it would proceed to demolish
the property, Plaintiff now seeks to cure its untimely claim for damages by amending
the Complaint. Certainly, had the Plaintiff filed his action timely, this matter could have
•
been tried long before the City of Salem substantially began the demolition process.
Allowing this late amendment would contravene the intended purpose of immediate
• review of such matters and prejudice the City of Salem.
Plaintiffs Renewed Effort at Injunctive Relief Must Fail.
In order to prevail on its motion for injunctive relief, Plaintiff has the burden of
establishing: (1) a substantial likelihood of success on the merits; (2) irreparable harm
if injunctive relief is not granted; (3) that the harm likely to be suffered by the Plaintiff if
the injunction is denied is greater than the harm to the City of Salem if the injunction is
•
granted; and (4) that the public interest would be served by granting an injunction. Hull
Mun. Liahtino Plant v. Massachusetts Wholesale Elec. Co., 393 Mass. 640, 645 (1987);
•
5
•
•
Packagin-g Indus. Group Inc. v. Cheney, 380 Mass. 609, 616-18 (1980).
A. Plaintiff Has Failed to Establish a Substantial Likelihood of Success on the
• Merits.
Even if Plaintiff were allowed to amend its Complaint for review, it has failed to
establish a substantial likelihood of success on the merits. The Plaintiff relies solely on
• the report of an engineer who observed the structure from the exterior only and
reviewed some unidentified photographs of the inside. Even in his report, Mr. Mugnier
explains that the exterior wall has moved away from the building suggesting that "the
• fagade be attached to the floors". (See Mugnier Report at p. 3, ¶2). Moreover, his
conclusion is inconclusive leaving two options, repair or demolish, precisely what the
• City of Salem had requested since at least as early as January 2000. He states "it is
possible that this building could be remodeled and brought back to proper structural
condition" or "economic consideration may lead to construction of a new structure." (Id.
• at 18).
The evidence provided by the Survey Board in May 2000 and the earlier report
of Robert Rumpf(commissioned by the previous owner two years ago) support the
• demolition of this structure forthwith. The Plaintiff by failing to take any corrective
action left the City of Salem no option but to demolish the structure itself.
• B. Plaintiff Will Not Suffer Irreparable Harm If Injunctive Relief Is Denied.
Plaintiff has failed to demonstrate what irreparable harm it will suffer if the City of
Salem is allowed to complete the demolition of the property. The only harm alleged by
•
this Plaintiff is that it will cost more money if the City of Salem demolishes the building
rather than allowing Plaintiff to do it itself. The City of Salem offered the Plaintiff this
•
6
0
•
opportunity and the Plaintiff failed again by doing absolutely nothing. If the Plaintiff
were allowed to amend its Complaint and somehow prove wrongful demolition, it could
• certainly be compensated monetarily—or it could be charged back against the City of
Salem's demolition lien which should be approximately $287,000.00.2
C. The Balance of Harms Favors the City of Salem's Position that the
Demolition Must Proceed to Completion Forthwith.
The City of Salem has contracted with Costello Dismantling to abate and
demolish this structure. The demolition is substantially underway. It is anticipated that
41 the abatement preparation will be completed by week's end and that demolition could
begin next week. All of the utilities have been disconnected. This building that was
already in extremely dangerous condition is even more so now due to this extensive
•
preparation. Removal of the shingles and windows and sashes completely exposes the
building to the outside and elements. It also makes the intensity of a fire much more
• severe should it happen. The building sits in a dense residential neighborhood.
Conflagration at this time could be catastrophic for the neighborhood and attendant
Salem fire fighters.
•
D. An Injunction at this Late Stage of the Demolition Process Would
Adversely Affect the Public Interest.
In light of the extensive preparation work for the final demolition, an injunction at
•
this stage would be even more detrimental to the public than it would have been when it
was first denied on May 23, 2000. The neighborhood has put up with this dilapidated
• building far too long already. Public safety has been foremost in the Building
2 It should also be noted that Plaintiff still owes the City of Salem $6,312.00 for fire watches at
this property in December 1999 and May 2000.
•
7
•
•
Inspector's efforts to either make safe or demolish this structure. When given over a
month to do the demolition itself, the Plaintiff did nothing. Public safety and the public
• interest warrant that the Building Inspector be allowed to complete the job.
CONCLUSION
As the Plaintiffs claim for damages is untimely, it should not be allowed to
•
amend its Complaint at this eleventh hour of demolition. Furthermore, Plaintiffs
request for injunctive relief should be denied as it has failed to meet its burden of proof
• for same.'
RESPECTFULLY SUBMITTED,
Defendant City of Salem,
• By its attorney,
�J—,
Jo D. Keenan,
• Cit olicitor
BB 61573
222 Msex Street
Salem, Massachusetts 01970
Tel. 978.741.4453
Fax 978.740.0072
•
•
3 Should the Court grant the relief requested, the City of Salem would request appropriate
security provided by the Plaintiff pursuant to Mass. R. Civil P., Rule 65(c).
•
8
•
•
Certificate of Service
•
I, John D. Keenan, do hereby certify that on this 28th day of September, 2000, 1
served a copy of Defendant City of Salem's Memorandum in Opposition to the
! Motion to Amend and for Reconsideration for Restraining Order, in hand to:
James Rogal, Esq.
32 Church Street
Salem, MA 01970
Joh D. K nan, City Solicitor
•
•
•
I •
•
•
9
•
•
•
•
EXHIBIT "A"
•
•
•
•
•
•
•
Tity of *alcm, Mass ar4us etts
Public Propertg Bepartment
• _� Nuilbing Bepartment
(Ont thitm (4retn
500-745-9595 fd. 3811
Leo E. Tremblay
Director of Public Property
• Inspector of Building
Zoning Enforcement Officer
July 9, 1997
•
Richard Leather Co. Inc.
9 Webb Street
Salem, Mass . 01970
• Attention: Leo Zisis
RE: 9 Webb Street
Dear Mr . Zisis :
On July 8 , 1997 , per the request of the City of Salem
• Health Department and some of your abutters , an inspection
was conducted at 9 Webb St. on the existing condition of
your factory.
Per our conversation, you agreed to hire a structural
engineer and perform any necessary structural repairs that
he found would be required. He is also to file a report
• to my office in writing of his findings, and means of
correction.
This office intends on working closely with you to
bring this building into State Building Code compliance .
Thank you for your anticipated cooperation in this
` matter.
Sincerely,
Leo E . Tremblay
• Inspector of Buildings
LET: scm
cc: David Shea
Health Department
• Fire Department
Councillor Paskowski , Ward 1
•
•
•
•
EXHIBIT "B"
•
•
•
•
•
•
•
•
Tito of -*ttlem, Mass ar4uoetto
� �'� Public Proper ll Ilepartment
• �4ry�"'� iguilbing Eepartment
(one 8alrm Grrm
508-745-9595 Ext. 380
Leo E. Tremblay
• Director of Public Property
Inspector of Building
Zoning Enforcement Officer
October 28, 1997
•
Richard Leather Co. Inc.
9 Webb Street
Salem, Mass . 01970
ATT: Leo Zisis
• RE: 9 Webb Street
Dear Mr . Zisis :
This office has been more than patient in waiting for
a response from your structural engineer as to what
• precautions are being made to make the structure safe to
enable continuing work to be performed in this building
located at 9 Webb Street .
This office considers this building unsafe for
occupancy under the present condition.
Please notify this department within fifteen ( 15 )
days upon receipt of this letter, to inform us as to what
course of action you will take to rectify these
violations . Failure to do will result tin legal action
being taken.
Thank you in advance for your anticipated cooperation
in this matter.
Sincer y, �
Leo E. Tremblay-
Inspector
rembly Inspector of Buildings
LET: scm
cc : David Shea
Health Department
• Fire Department
Councillor Paskowski , Ward 1
I �
EXHIBIT "C"
�I •
•
•
s
•
•
•
COMMONWEALTH OF MASSACHUSETTS
ESSEX, SS SUPERIOR COURT DEPARTMENT
• C.A. NO.: 00-0886-B
ONE COUSIN'S STREET REALITY )
TRUST, Donna Colitz, Trustee )
Plaintiff, )
vs. )
CITY OF SALEM, )
Defendant. )
•
AFFIDAVIT OF THOMAS ST. PIERRE
I, Thomas St. Pierre, under oath, do hereby state and depose:
•
1. My name is Thomas St. Pierre and I am an Assistant Building Inspector for the
City of Salem.
2. As Assistant Building Inspector, one of my responsibilities has been overseeing
• the demolition of the former Richard's Leather Factory at 1-11 Cousins Street in
Salem, Massachusetts.
3. On January 25, 2000, 1 sent notice to Trustee Donna Colitz through her attorney
that the building was especially unsafe in case of fire. I instructed them to either
• make the building safe or begin demolition. (See attached copy).
4. Although the wet sprinkle system was eventually repaired and then replaced by
a dry system, the building for structural reasons remained a hazard to public
safety—especially to the immediately surrounding neighbors and fire fighters.
5. As months passed and the owner continued to fail to address the problems, on
May 15, 2000, the City of Salem conducted a "Survey Board" inspection in
accordance with the State Building Code (780 CMR 121.4). The Board included
Building Inspector Peter Strout, Salem Fire Chief Robert Turner, Assistant City
Engineer Michael Collins and Frank DeFalco, Principal of Hobbs Endeavor
• Corporation.
6. The Board determined that building was in extremely dangerous condition and
had to be immediately repaired or demolished. Notice of these findings was
provided to the trustee.
•
1
•
•
7. As we began the demolition process, the Trustee sought court protection to stop
the demolition.
8. On May 23, 2000, 1 attended the hearing on motion to stop us from tearing this
building down. Judge Howard Whitehead denied the motion.
9. On the following days, May 24th and 25`h, the beginning phases of preparation
for demolition began. This first phase included removal of two outdoor,
underground holding tanks, one for solvents and one for oil.
•
10. As we continued the project, property manager Fred Hutchison asked to meet
with me and Building Inspector Peter Strout to see if he could do the actual
demolition work himself to save money. It was anticipated that the project would
cost from $250-300,000.
11. Through discussions, we ultimately agreed in mid-June 2000 that Mr. Hutchison
could do the demolition if he began immediately and had the job completed by
August 11, 2000.
12. By July 20, 2000, as Mr. Hutchison had not done anything on the project — not
• even fencing it off-we decided to hire an independent company to do the work.
13. We worked with Beta Engineering to determine what abatement would need to
be done prior to actual demolition of the structure.
• 14. We have contracted with Costello Dismantling, Inc. of Middleboro,
Massachusetts to perform the abatement and demolition.
15. The abatement, approved and supervised by D.E.P., is 90% completed.
• 16. Outside abatement is completed. All of the asbestos shingles have been
removed. The windows and sashes have been removed as the caulking
contained asbestos.
17. 1 expect the remaining abatement inside will be completed by the end of this
week and the building will be ready for demolition next week.
18. All the utilities have been shut off.
19. At this point, with the exterior exposed and the windows removed, the building is
even more dangerous should a fire break out. Fire fighters will not go into the
• building at this time.
20. Our total costs with abatement and demolition will be approximately
$287,000.00.
•
2
•
•
21. 1 have reviewed Rene Mugnier's report on this structure and agree with his final
• analysis that states, "it is possible that this building could be remodeled and
brought back to a proper structural condition" or"economic considerations" may
lead to demolition and rebuilding. At a cost, it is possible that any building
could be restored. It is not feasible for this building as was concluded by Robert
R. Rumpf in his structural review of this building over two-and-a-half years ago
• stating, "We believe the present condition of the building is so poor as not to
warrant any financially viable attempt at permanent repairs." (See Rene Mugnier
Report, p. 3 and attached copy of Rumpf Report of 01/07/98).
22. Public safety concerns require that we be allowed to complete the demolition of
• this extremely dangerous structure—a structure that has been made even more
dangerous by the substantial preparation for the demolition process itself.
SIGNED UNDER THE PAINS AND PENALTIES OF PERJURY THIS 27TH DAY OF
SEPTEMBER, 2000.
Thomas St. Terre, Asst. Bldg. Insp.
•
I •
•
•
3
•
Citp of &al m, Aam5arbuzem;
* Public Propertp Department
• +,,� �3uilbing Mepartment
one balem green
(978) 745-9595(Ext. 380
Peter Strout
Director of Public Property
• Inspector of Buildings
Zoning Enforcement Officer opy
January 25, 2000
•
1-11 Cousins St. Realty Trust
Donna Colitz
c/o Bollick and Welch
• 32 Church Street
Salem, Ma. 01970
RE: 1-11 Cousins Street
• Dear Ms. Colitz:
Due to numerous complaints and in response to neighborhood concern, I inspected the
exterior of your property located at 1-11 Cousins Street. I have also been inside the
building on several occasions.
• This department is concerned about continued deterioration of this property.
As you are a probably aware, a structural report, conducted by Robert Rumpf and
Associates dated January 1998,points out several structural problems. This report also
summarizes; "The present condition of the building is so poor as to not warrant any
financially viable attempt at permanent repairs."
The building is now two years older and still suffering from additional deterioration
and the rotting problems caused by these leaks.
• Section 121 of the State Building Code, 780 CMR, allows a building official to declare a
building unsafe structure if it is open to the weather, abandoned or if such structure would
be especially unsafe in case of fire.
This department and City of Salem Fire Department feel this building would be
especially unsafe in case of fire.
•
•
• Therefore you are directed to begin the process to make safe or remove the structure.
Please contact this office within ten(10) days upon receipt of this letter to discuss your
plans for this building.
• Failure to respond will result in court action being filed in Salem District Court.
If you feel you are aggrieved by this order you may appeal to the State Building Code
Board of Appeals. Forms available at our office.
• Thank you in advance for your anticipated cooperation in this matter.
Sincerely, .
• Thomas St. Pierre
Local Building Inspector
cc: Mayor Usovicz
Fire Prevention
• Councillor LaCava
Polish Falcons Club of America
•
•
•
•
•
ROBERT M. RUMPF & ASSOCIATES RE : REPORT ,�`J'��N OF 4As, #8002
CONSULTING ENGINEERS Structural Inspection �P� ROBERT
101 DERBY STREET Richard Tanning Co. M.
RU Pf
• SALEM.MASS.01970 Salem, Massachusetts `� No. 6632
SM-745-6596 FAX 506.745-6596gA�PfQ�ST6P'�Op���
�SSIONAL fNG`
01!07/98
•
Mr. Leo Tremblay
Building Inspector
One Salem Green
Salem, Massachusetts 01970
• by hand-
REPORT re: Structural Inspection
9 Webb Street Leather Company Facility
Salem Massachusetts
• This is a report on our inspection of the referenced building with full emphasis on occupants'
safety. We believe that the present condition of the building is so poor as not to warrant any
financially viable attempt at permanent repairs.
The remedial directives shown on the enclosed plans are strictly of a temporary nature to insure
• safety. They are only effective if no additional loading is introduced beyond those required for
Current operations.
Boiler room roof framing requires reinforcing. This engineer shall specify corrective work in the
area while shoring operations are underway.
We will be making periodic inspections to see that the drawing requirements are met, and keep
• you informed of same.
If you need additional information, please advise.
H1% o
R ectf IIY suit
• _�//'/�I' E
No. 6632 � A •
O Q
Robert M. Rumpf, 1^
OIsr50`�p''�'
Robert M. Rumpf& L�pC
• cc: Mr. Leo 21sis-Trustee
9 Webb Street
Salem, Massachusetts 01970
•
•
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Robert M. Rumpf & Associates First Floor - 1/16" Scale I
Consulting Civil - Structural Engineers ROMERr
101 DerbyStreet Phone/Fax Richard Tanning Co. Date: 1/8/98 o.W32
- (978) 745-6596 "� m' <
Salem, MA 01970 Salem, Massachusetts �.FSO,s.sP°
Project #
Gbee off accave to ti', awa
8 z 12 Beam ----------------------- WWA in cerdemied
1 I 4 x 12 Beam I \
1 I i Mair Roof Below 2' z b'Inamizd knd,a
1
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1
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Drawing #
Second Floor - 1/16" Scale r"°`w.,
Robert M. Rumpf & Associates >� s
ROBERT
Consulting Civil - Structural Engineers Date: 1/8/98 a RUM.
MPF r n
Richard Tanning Co. „`.632 C c
101 Derby Street Phone/Fax - (978) 745-6596 Salem, Massachusetts $F'fa, P4°W
Salem, MA 01970 Project # eooz
3 - 13/4- x 17/8' LVL on 2 x 10's a 24' o.c.
top of roof and bolted to
him Underneath Truss
— ———— ———————————————
Or6v& 8- x 8- poet from 1
thrd floor to roor trues.
� I
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' o
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w 2' - Cr oa. for more thin 20'
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Robert M. Rumpf & Associates Third Floor - 1/16" Scale CS.,
Drawing #
Consu/ting Civil - Structural Engineers Date: 1/8/98EX3
Richard Tanning Co.101 Derby Street Phone/Fax - (978) 745-6596 Salem, Massachusetts
Salem, MA 01970 Project # 8o-z
•
EXHIBIT "D"
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AREA CODE 978
TEL. 745-5440 P.O. BOX BU
TEL. 744.5686 RICHARD TANNING CO. , INC. FAX -744.4644
MANUFACTURERS OF
ANTELO VELOUR GARMENT SUEDE
9 WEBB ST. — SALEM, MA 01970
Jan. 28 , 1998
Leo E. Tremblay
Director of Public Property
Inspector of Building
RE; 9 Webb Street
Dear Mr. Tremblay,
We are requesting a building permit to address certain
temporary repairs recommended by Robert M. Rumpf and Associates
to enable continuing work to be performed at this location,
until the end of June 1998 .
It will be our intention at that time to determine if
it will be economically viable to do permanent rep to the
g. o- T �, �.-
buildinn-, i t
you for Uy
0 Thank
y your continuing support in thi atter .
Since ely,
Leo Zi s
0
0
0
0
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EXHIBIT "E"
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oe
CITY OF SALEM
• s
�m in cjtySft%mWr 9, 1999
• �rr ered:That the owner of Richards Leather on Webb Street appear
e ore the Committee on Public Health for a public hearing regarding
health issues at that building.
AND BE IT FURTHER ORDERED: that the abutters, owner, Building
Inspector, and Fire Safety be invited.
•
In City Council September 9, 1999
• Adopted
• ATTEST: DEBORAH E. BURKINSHAW
CITY CLERK
•
•
•
•
• ��JJff / / / / . 0 T
/�[���.� �/V14%Rd%1liUf °y�vg � ,
64�6&4 J�.00irz>
�.
September 29, 1999
Peter Strout, Building Inspector
• City of Salem
Salem, MA 01970
Dear Mr. Strout:
You are respectfully requested to appear before the City
• Council Committee on Public Health, Safety, and Environment on
Wednesday, October 6, 1999 at 7 :00 P. M. in the Council Chamber
for the purpose of discussing the enclosed.
Very truly yours,
•
G \
EBORAH
CITY CLERK
Enclosure
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EXHIBIT "F"
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Citp of *alem, Aa!5ntbuzett5
Publit i3ropertp Mepartment
• Nuilbing Bepartment
(One 6alem Oreen
(978) 7459595 C'xt. 380
Peter Strout
Director of Public Property
• Inspector of Buildings
Zoning Enforcement Officer
•
5/22/99
• 1-11 Cousins St. Realty Trust
Donna Colitz
RE: 1-11 Cousins St.
• Dear Ms. Colitz:
On May 15 2000 The City of Salem entered the property at 1-11 Cousins St. with the
owners permission and conducted a"Survey Board" inspection according to 780 CMR
121.4 Failure to remove or make structure safe. As a result the board found the building
to be extremely dangerous and in need of immediate repair or the removal of the
• structure.
The City Building Department has been trying to work with the owners past and present
to provide us with a suitable plan to proceed with making the building safe and have had
no response. This process has been going on for several years with the building further
failing. At this point we are forced to invoke 121.4 and start the process immediately.
Sincerely
Peter Strout
Building Commissioner
•
•
780 CMR: STATE BOARD OF BUILDING REGULATIONS AND STANDARDS
THE MASSACHUSETTS STATE BUILDING CODE
If it appears that such building or structure would be case of such demolition, the said building official
. especially unsafe in case of fire, it shall be deemed shall cause such lot to be leveled to conform with
dangerous within the meaning hereof, and the adjacent grades by a inorganic 511. The costs and
building official may affix in a conspicuous place charges incurred shall constitute a lien upon the land
upon its exterior walls a notice of its dangerous upon which the structure is located, and shall be
condition, which shall not be removed or defaced enforced in an action of contract; and such owner
without authority from him. shall,for every day's continuance of such refusal or
neglect after being so notified,be punished by a fine
121.3 Removal or making structure safe: Any in accordance with 780 CMR 118.4. The provisions
person so notified shall be allowed until 12:00 noon of M.G.L. c. 139, §3A, paragraph two, relative to
of the day following the service of the notice in hens for such debt and the collection of claims for
which to begin to remove such building or structure such debt shall apply to any debt referred to in this
or make it safe, or to make it secure, and he shall section, except that the said building official shall
employ sufficient labor speedily to make it safe or act hereunder in place of the mayor or board of
remove it or to make it secure; but if the public selectmen. During the time such order is in effect,
• safety so requires and if the mayor or selectmen so it shall be unlawful to use or occupy such structure
order, the building official may immediately enter or any portion thereof for any purpose.
upon the premises with the necessary workmen and
assistants and cause such unsafe structure to be made 121.6 Remedy of person ordered to remove a
safe or demolished without delay and a proper fence dangerous structure or make it safe:
put up for the protection of passersby,or to be made Notwithstanding the provisions of 780 CMR 122,an
secure. owner, aggrieved by such order may have the
• remedy prescribed by M.G.L.c. 139, §2:provided
,121.4 Failure to remove or make structure safe, that any provision of M.G.L.c. 139,§2 shall not be
survey board,survey report: If an owner of such construed so as to hinder, delay or prevent the
unsafe structure refuses or neglects to comply with building official from acting and proceeding under
the requirements of such notice within the specified 780 CMR 121; and provided, further, that this
time limit, and such structure is not made safe or section shall not prevent the city or town from
taken down as ordered therein, a careful survey of recovering the forfeiture provided in said 780 CMR
the premises shall be made by a board consisting;in 121.5 from the date of the service of the original
a city, of a city engineer, the head of the fire notice,unless the order is annulled by the jury.
department, as such tens is defined in M.G.L.
c. 148, § 1, and one disinterested person to be 780 CMR 1220 BOARD OF APPEALS
appointed by the building official;and, in a town of 122.1 State Building Code Appeals Board:
a surveyor,the head of the fire department and one Except for actions taken pursuant to 780 CMR
disinterested person to be appointed by the building 121 0, whoever is aggrieved by an interpretation,
official. In the absence of any of the above officers order,requirement, direction or failure to act under
or individuals, the mayor or selectmen shall 780 CMR by any agency or official of the city,town
designate one or more officers or other suitable or region,or agency or official of the State charged
persons in place of the officers so named as with the administration or enforcement of 780 CMR
members of said board. A written report of such or an of its rules or re
survey shall be made, and a copy thereof served on y peal dire excepting any
such owner. specialized codes, may appeal directly to the State
Building Code Appeals Board as provided in
780 CMR 122.0.
121.5 Removal of dangerous or abandoned whoever is aggrieved by an interpretation,order,
structures: If such survey report as outlined in requirement, direction or failure to act under
780 CMR 121.4 declares such structure to be 780 CMR by any agency or official of a city, town
dangerous or to be unused, uninhabited or or region charged with the administration or
abandoned, and open to the weather, and if the enforcement of 780 CMR,excepting any specialized
owner continues such refusal or neglect,the building codes, may appeal directly to the State Building
official shall cause it to be made safe or taken down Code Appeals Board or may appeal fust to,a local or
or to be made secure; and, if the public safety so regional building code appeals board and if
requires, said building official may at once enter the aggrieved thereby he may then appeal to the State
structure,the land on which it stands or the abutting Building Code Appeals Board as provided in
land or buildings, with such assistance as he may 780 CMR 122.0.
require, and secure the same; and may remove and In the event an appeal is taken directly to the State
evict, under the pertinent provisions of M.G.L. Building Code Appeals Board from an
c.239,or otherwise,any tenant or occupant thereof; interpretation, order, requirement or direction, said
and may erect such protection for the public by appeal shall be filed as specified in 780 CMR
proper fence or otherwise as may be necessary,and 1223 1 with the State Building Code Appeals Board
for this purpose may close a public highway. In the not later than 45 days after the service of notice
28 780 CMR-Sixth Edition 2/7/97 (Effective 2/28/97)
•
h City of Salem, Massachusetts
Fire Department
•
48 Lafayette Street
Robert W.Turner Salem,Massachusetts 0197o-3695
Fire Prevention
Chief Tel 978-744-1235
Bureau
978-744-6990
FaX 978-745-4646 978-745-7777
•
• May 15, 2000
Mr. Peter Strout,
Inspector of Buildings
• City of Salem
One Salem Green
Salem, MA 01970
Dear Mr. Strout:
• On Friday, May 12, 2000 I, together with Fire Marshal Charles Latulippe, participated in
a Board of Survey with the Inspector of Buildings, the Assistant City Engineer and an
independent structural engineer. The property being surveyed was located at #9 Webb
Street and is a former leather-processing factory.
• Upon inspection of the property several structural deficiencies were noted to include
altered trusses (bottom chord cut and removed), decayed and/or damaged structural
members including weight bearing columns, floor joists, wind bracing, stair stringers and
support beams.
There were several open, unprotected pits on the ground level which would present
severe hazards to firefighters who may enter the building in search of vagrants, the
homeless or intruders. Holes had been cut on the floors above to facilitate the removal of
machinery. These holes also present an unguarded hazard to rescue personnel and serve
to facilitate the rapid spread of fire throughout the building.
A quick look at the building from the outside reveals a structure in the process of
premature collapse. Exterior walls are so far out of plumb the untrained eye could easily
see the propensity of these walls for early collapse.
This vacant factory is situated in a residential neighborhood in close proximity to several
• occupied dwellings of unprotected wood-frame construction. Should a fire occur in this
•
dilapidated factory the entire neighborhood would be at significant risk of rapid fire
• spread and immediate danger to the occupants. There is a real possibility of a
conflagration should the right conditions occur.
I strongly recommend that this hazard be eliminated immediately in light of the condition
of the building and the character of the immediate neighborhood.
•
Sincerely,
•
Robert W. Turner,
Chief of Department
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HOBBS ENDEAVOUR CORPORATION
Consultants in the Engineering Sciences
74 Rockland Street,Swampscott,MA 01907 781.581.2454
• 12 May 2000
City of Salem
Public Property Department
Building Department
•
Re: Existing Conditions, 1-11 Cousins St., Former `Richard Leather Co., Inc. Building'
Salem,MA
Attention: Peter Strout,Building Commissioner
• Gentlemen:
As you requested,today we made a visual survey of certain conditions at the building. We were
accompanied by Commissioner Strout while others were present.
• The building walls are out-of-plumb with a visually-alarming lean toward Cousins St. Many of
the interior timber columns show this same lean with associated distress to the timber beams they
support. Much of the structure's interior framing is severely deteriorated, structurally
inappropriate and unstable, or both.
We consider the existing structure to be dangerously unstable and unsafe. High winds, ponding
• rain water or snow on the roofs, or ajar from heavy vehicular traffic could trigger a collapse.
We consider that the structure is a hazard which could result in injury or death.Not only the
public as a whole,but especially the residences on the opposite side of Cousins St, are at risk.
Very truly,
• HOBBS ENDEAVOUR CORPORATION
William Loring Hobbs
President FaAn1t
0 �� OEF7il00
Frank D. DeFalco
Principal
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Citp of 6alem, fRa2;gatbu2;ettg
Mepartment of 3public berbice
• g
®ne .ialem Oreen
(978) 745-9595 Ext. 321
STANLEY I.BORNSTEIN,P.E.
City Engineer -Pax: (978) 745-5877.
Director of Public Services -
•
May 17, 2000
Peter Strout,
Building Inspector
City of Salem
One Salem Green
Salem,MA 01970
•
RE: Board of Survey, former Richards Leather, Webb St.
Dear Peter:
• As you know, on May 12, 2000 I, along with yourself, Chief Turner, Inspector
LaTulippe, and William Hobbs visited and inspected the above mentioned site. The
purpose of our inspection was to determine the level of hazard that exists at the site and
to determine whether or not the building could be salvaged. As a result of our inspection,
I can say firmly that the level of hazard is extreme and that it is not possible to salvage
the existing structure.
•
During my inspection, I noted the almost total lack of lateral bracing in the structure.
This feature makes the building inherently unstable, as noticed by the fact that the
building is listing towards Cousins Street several inches. I also noticed that at some
point,the roof trusses had their bottom chords removed and replaced with vertical posts.
` This will result in transferring the roof load from the outside walls to the columns below.
On their best day, the columns below were not designed for that load. The columns that I
saw were rotted severely and damaged by impact. Several floor joists were barely
attached to their respective columns. Most connections were nailed and not bolted.
I notice quite a bit of damage that appeared to be new. I saw several main carrying
• beams that were showing signs of recent failure. The added weight of the ice from this
winter when the sprinkler system failed could be to blame. The flat roof on the Cousins
Street side is supported on its upper end by a single 2x4 ledger board. This ledger has
pulled away from the wall as much as a foot in places. The weight of a fire fighter would
surely bring this roof down. I am worried that when this roof collapses(which I believe
•
•
• Y
1
is imminent)that it will displace the columns that support the main building. This would
• lead to instant structure failure.
In short I believe that the structure is so dangerous and so close to failure as to pose an
immediate threat to public safety. It is my opinion that the building should be razed
immediately. I have not mentioned the obvious hazard of the electrical service and
environmental hazard that exist. I would like to take this time to emplore the fire
• department to not enter the building, as it would surely lead to a tragedy.
If I can be of further assistance, please let me know.
Sincerely,
IVIi ael Collins,
Assistant City Engineer
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EXHIBIT "G"
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WILLIAM J.LUNDgEGAN CITY OF SALEM - MASSACHUSETTS
Legal Department JOHN D.KEENAN
City Solicitor 93 Washington Street Assistant city Solicitor
81 Washington Street Salem, Massachusetts 01970 e0 Washington Street
Tel:978-741-3888 Tel:978-741-4453
• Fax:978-741-8110 Fax:978-740-0072
VIA FAX & FIRST CLASS MAIL: 978.745.6606
� James L. Rogal, Esq. June 23, 2000
32 Church Street
Salem, Massachusetts 01970
RE: Demolition of Richard's Leather Company
1-11 Cousins Street, Salem, MA
Dear Attorney Rogal:
As you are aware, the above captioned property has been declared an unsafe
and dangerous structure pursuant to 780 CMR 121.0. The condition of said
• property warrants immediate demolition, as was confirmed by Judge Howard
Whitehead. Through you and your client's discussions with Building Inspector
Peter Strout, it is my understanding that the owner is now willing to demolish the
building as requested by the Building Inspector.
• Pursuant to 780 CMR 121, the owner must "employ sufficient labor speedily to . .
. remove [the building]." This process should proceed forthwith in accordance
with 780 CMR 121 (unsafe structures) and 780 CMR 112.0 (demolition of
structures). It is further understood that the demolition will be completed on or
before August 11, 2000.
• Thank you for your attention to this matter. Please do not hesitate to call with
any questions.
Very best regards,
Jo . Keenan,
As City Solicitor
En
• cc. Peter Strout, Bldg. Inspector
Robert Turner, Fire Chief
•
780 CMR: STATE BOARD OF BUILDING REGULATIONS AND STANDARDS j
ADMINISTRATION
provisions of 780 CMR in case of any false the necessary retaining walls and fences in
statement or misrepresentation of fact in the accordance with the provisions of 780 CMR 33.
• application or on the plans on which the permit or
approval was based. 780 CMR 113.0 CONDITIONS OF PERMIT
It 113.1 Payment of fees:A permit shall not be issued
issue a Approval in part:The building official may until the fees prescribed in 780 CMR 114.0 have
issue a permit for the construction of foundations or been paid.
any other part of a building or structure before the
construction documents for the whole building Or 113.2 Compliance with code:The permit shall be a
• structure have been submitted, provided that license to proceed with the work and shall not be - ,
adequate information and detailed statements have construed as authority to violate,cancel or set aside
been filed complying with all of the pertinent any of the provisions of 780 CMR or any other law
requirements of 780 CMR. Work shall be limited to or regulation, except as specifically stipulated by -
that work approved by the partial approval and modification or legally granted variation as
further work shall proceed only when the building described in the application.
• permit is amended in accordance with 780 CMR .
110.13. The holder of such permit for the 113.3 Compliance with permit: All work shall
foundation or other parts of a building or structure conform to the approved application and the
shall proceed at the holder's own risk with the approved construction documents for which the
building operation and without assurance that a permit has been issued and any approved
permit for the entire building or structure will be amendments to the approved application or the
granted. approved construction documents.
111.14 Posting of permit: A true copy of the 113.4 Compliance with site plan: All new work
building permit shall be kept on the site of shall be located strictly in accordance with the
operations, open to public inspection during the approved site plan.
entire time of prosecution of the work and until the
completion of the same. 780 CMR 114.0 FEES
• 111.15 Notice of start: At least 24-hour notice of 114.1 General: A permit to begin work for new
start of work under a building permit shall be given construction,alteration,removal,demolition or other
to the building official. building operation shall not be issued until the fees
prescribed in 780 CMR 114.0 shall have been paid
780 CMR 112.0 DEMOLITION OF to the department of building inspection or other
STRUCTURES authorized agency of the jurisdiction, nor shall an
amendment to a permit necessitating an additional
112.1 Service connections: Before a building or fee be approved until the additional fee has been
•
structure is demolished or removed, the owner or paid.
agent shall notify all utilities having service
connections within the structure such as water, 114.2 Special fees: The payment of the fee for the
electric,gas,sewer and other connections. A permit construction, alteration, removal or demolition for
to demolish or remove a building or structure shall all work done in connection with or concurrently
not be issued until a release is obtained from the with the work contemplated by a building permit
utilities, stating that their respective service shall not relieve the applicant or holder of the permit
e .connections and appurtenant equipment, such as from the payment of other fees that are prescribed by
meters and regulators,have been removed or sealed law or ordinance for water taps,sewer connections,
and plugged in a safe manner, electrical permits, erection of signs and display
All debris shall be disposed of in accordance with structures, marquees or other appurtenant
780 CMR 111.5. structures, or fees of inspections, certificates of
112.2 Notice to adjoining owners: Only when occupancy or other privileges or requirements,both
written notice has been given by the applicant to the within and without the jurisdiction of the department
• owners of adjoining lots and to the owners of wired of building inspection.
or other facilities,of which the temporary removal is
necessitated by the proposed work, shall a permit be 114,3 New construction and alterations:The fees
granted for the removal of a building or sintcturefor plan examination, building permit and
inspections shall be as prescribed in 780 CMR
112.3 Lot regulation: Whenever a building or 114.3.1 and the building official is authorized to
structure is demolished or removed, the premises establish by approved rules a schedule of unit rates
• shall be maintained free from all unsafe or hazardous for buildings and structures of all use groups and
conditions by the proper regulation of the lot, types of construction as classified and defined in
restoration of established grades and the erection of 780 CMR 1, 3 and 6.
2/7/97 (Effective 2/28/97) 780 CMR-Sixth Edition 23
•
780 CMR: STATE BOARD OF BUILDING REGULATIONS AND STANDARDS
THE MASSACHUSETTS STATE BUILDING CODE
114.3.1 Fee schedule: A fee for each plan variations of the approved construction documents
examination, building permit and inspection shall and permit shall be noted and the holder of the
• be paid in accordance with the fee schedule as permit shall be notified of the discrepancies.
established by the municipality.
115.6 General: In the discharge of his duties, the
114.4 Accounting: The building official shall keep building official shall have the authority to enter at
an accurate account of all fees collected; and such any reasonable hour any building, structure or
collected fees shall be deposited in the jurisdiction premises in the municipality to enforce the
treasury in accordance with procedures established provisions of 780 CMR.
• by the municipality, or otherwise disposed of as If any owner, occupant, or other person refuses,
required by law. impedes, inhibits, interferes with, restricts, or
obstructs entryand free access to every part of the
780 CMR 115.0INSPECITON structure, operation or premises where inspection
authorized by 780 CMR is sought, the building
115.1 Preliminary inspection: Before issuing a official, or state inspector may seek in a court of
permofficial it, the building ocial shall, if deemed competent jurisdiction, a search warrant so as to
• necessary, examine or cause to be examined all apprise the owner, occupant or other person
buildings, structures and sites for which an concerning the nature of the inspection and
application has been filed for a permit to construct, justification for it and may seek the assistance of
enlarge, alter, repair, remove, demolish or change police authorities in presenting said warrant.
the use or occupancy thereof.
115.7 Identification: The building official shall
115.2 Required inspections: After issuing a carry proper identification when inspecting
• building permit, the budding official shall conduct structures or premises in the performance of duties
inspections during construction at intervals sufficient under 780 CMR.
to ensure compliance with the provisions of
780 CMR. The building official shall inform the 115.8 Jurisdictional cooperation: The assistance
applicant of the required points of inspection at the and cooperation of police, fire, and health
time of application. Upon completion of the work departments and all other officials shall be available
for which a permit has been issued, the building to the building official as required in the
• official shall conduct a final inspection pursuant to performance of his duties.
780 CMR 115.5. A record of a0 such examinations
and inspections and of all violations of 780 CMR 115.9 Coordination of inspections: Whenever in
shall be maintained by the building official. For the enforcement of 780 CMR or another code or
buildings and structures subject to construction ordinance, the responsibility of more than one
control, the owner shall provide for special building official of the jurisdiction is involved, it
inspections in accordance with 780 CMR 1705.0, shall be the duty of the building officials involved to
• In conjunction with specific construction projects, coordinate their inspections and administrative
the building official may designate specific orders as fully as practicable so that the owners and
inspection points in the course of construction that occupants of the building or structure shall not be
require the contractor or builder to give the building subjected to visits by numerous inspectors or
-official 24 hours notice prior to the time when those multiple or conflicting orders. Whenever an
inspections need to be performed. The building inspector from any agency or department observes
official shall make the inspections within 48 hours an apparent or actual violation of some provision of
t. -after notification. some law, ordinance or code not within the
inspector's authority to enforce, the inspector shall
115.3 Approved inspection agencies:The building report the findings to the building official having
official may accept reports of approved inspection jurisdiction.
agencies provided such agencies satisfy the
requirements as to qualifications and reliability. 780 CMR 116.0 REGISTERED
• 115.4 Plant inspection: Where required by the ARCFDTECI'URALAND
provisions of 730 CMR or by the approved rules, PROFESSIONAL ENGINEERING
materials or assemblies shall be inspected at the SERVICES-CONSTRUCTION CONTROL
point of manufacture or fabrication in accordance 116.1 General: The provisions of 780 CMR 116.0
with 780 CMR 1703.3. define the construction controls required for all
buildings and structures needing registered
• 115.5 Final inspection: Upon completion of the architectural or registered professional engineering
building or structure, and before issuance of the services, and delineate the responsibilities of such
certificate of occupancy required by 780 CMR professional services together with those services
120.0, a final inspection shall be made. All that are the responsibility of the contractor during
construction.
24 780 CMR-.Sixth Edition
2/7/97 (Effective 2/23/97)
•
•
•
•
EXHIBIT "H"
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�I•
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i •
0 O ply
m
CITY OF SALEM - MASSACHUSETTS
City Solicitor
WILLIAM J.LGAN Legal Department JOHN D.KEENAN
Solicitor
81 Washington Street 93 Washington Street Assistant City Solicitor
Tel:978-741-3888 Salem, Massachusetts 01970 60 Washington Street
Fax:978-741-8110 Tel:978-741-4453
• Fax:978-740-0072
VIA FAX & FIRST CLASS MAIL: 978.745.6606
• James L. Rogal, Esq. July 20, 2000
32 Church Street
Salem, Massachusetts 01970
RE: Demolition of Richard's Leather Company
1-11 Cousins Street, Salem, MA
•
Dear Attorney Rogal:
Due to the owner's failure to employ sufficient labor speedily to remove the
above captioned premises, the Building Inspector will now hire an independent
• demolition company to proceed immediately. (780 CMR 121). As you recall, it
was the owner who plead with the Building Inspector to allow him to do this job
himself so he could save on the demolition costs. Yet in approximately the
month he has been authorized to demolish, he has made no progress.
Considering the condition of the building and public safety emergency, such
nonperformance is unacceptable.
•
Please remind your client that the total costs to demolish this building will
become a municipal lien on the property.
Very best rpgards,
John . Keenan,
Asst ity Solicitor
• Enc.
cc. eter Strout, Bldg. Inspector
Obert Turner, Fire Chief
Scott LaCava, Ward One Councilor
•
•
•
•
EXHIBIT "P'
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.i X14.1
!
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•
CITY OF SALEM
GENERAL CONDITIONS
'I •
CONTRACT FOR CONSTRUCTION SERVICES
PROJECT TITLE: Emergency Demolition and Asbestos Removal — Richards
! Leather Company Building
LOCATION: Webb Street, Salem, Massachusetts
This agreement is made under seal the 5th day of September, 2000, between
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THE CITY OF SALEM (the "Owner'), and Costello Dismantling Co., Inc. (the
"Contractor"), of 2 Rocky Gutter Street, Middleboro, Massachusetts 02346
! SCOPE OF SERVICES
The Contractor shall perform the construction services briefly described hereafter, in
accordance with the terms and provisions of the Contract Documents. The
Contractor shall provide the Owner with the following construction services
• Emergency Demolition and Abatement of asbestos at the Former Richards
Leather Company Building in Salem, Massachusetts, as described in the
Contractor's August 3, 2000 (revised) proposal to Beta Engineering and the
Asbestos Abatement Project Manual Former Richards Leather Company dated
June 5, 2000, prepared by Smith & Wessel Assoc. Inc.
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TABLE OF CONTENTS
ARTICLE 1: DEFINITIONS 4
ARTICLE 2: DESCRIPTION OF WORK, INTERPRETATION, INTENT 5
ARTICLE 3: GENERAL PERFORMANCE OBLIGATIONS OF THE CONTRACTOR 5
1. Plans and Specifications 6
2. Dimensions 7
3. Mechanical, Electrical and Fire Protection Drawings 7
4. Requests for Information 8
5. Shop Drawings, Product Data and Samples 8
6. Notices, Permits, Conformance with Codes 9
7. Communications Facilitating Contract Administration 10
8. Site Layout, Registered Engineer, Survey 10
9. Sheeting, Shoring, Bracing 10
10. De-Watering 10
11. Correction of Work 10
12. Sanitary Facilities 11
13.Temporary Site Offices 11
14. Telephone, Heat, Utilities 11
15. Competent Workers;Superintendent' 11
16. Subcontractors 12
17. Safety Requirements 13
18. Methods, Means, Coordination, Cutting and Patching 15
19. Debris, Cleaning Up 16
20. Use of Site, Site Protection 17
21.Weather Protection 17
22.Taxes 17
23. Contractors Y2K Obligations 17
• ARTICLE 4: CONTROL OF MATERIALS AND EQUIPMENT 18
1. Source of Materials 18
2. "Or Equal'Clause 18
3. Samples and Tests 19
4. Deviation from Contract requirements 19
5. Delivery and Storage 20'
6. Payment for Stored Materials 20
7. Rejection of Defective Materials 21
8. Rejection of Defective Work 21
ARTICLE 5: PROSECUTION AND PROGRESS AND LIQUIDATED DAMAGES 21
1. Job Meetings 21
2. Contract Times, Schedules,Time Extensions 22
3. Substantial Completion, Final Completion 23
4. Liquidated Damages 24
5. Delays 25
6. Use and Occupancy 26
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t ARTICLE 6: CHANGES IN WORK 26
1. General 26
2. Computing Change Order Requests 27
3. Work Performed Under Protest 29
4. Statutory Provisions-Differing Site Conditions; Timely Decisions 29
ARTICLE 7: PAYMENT PROVISIONS 30
1. Contract Amount 30
2. Schedule of Values 30
3. Statutory Payment Provisions 31
4. Application for Payment 32
• 5. Certificates for Payment 33
6. Direct Payment Provisions 34
7. Payment Liabilities of Contractor 37
8. Acceptance of Final Payment 37
ARTICLE 8: TERMINATION 37
1. Termination For Cause 37
2. Acceleration 38
3. Termination Liabilities 38
4. Termination-No Fault 39
ARTICLE 9: GUARANTY 39
ARTICLE 10: MISCELLANEOUS LEGAL REQUIREMENTS 40
1. General 40
2. Corporate Disclosures 40
3. Veterans Preference 40
4. Prevailing Wage Rates 40
5. Employment Records 41
6. Vehicle And Equipment Operators 41
7. Certificate of Appropriation 42
ARTICLE 11: AFFIRMATIVE ACTION HIRING PRACTICES 42
ARTICLE 11A: SALEM AREA RESIDENTS PUBLIC CONSTRUCTION
EMPLOYMENT ORDINANCE 48
ARTICLE 12: CONTRACTOR'S ACCOUNTING REQUIREMENTS 48
ARTICLE 13: INSURANCE REQUIREMENTS 50
ARTICLE 14: INDEMNIFICATION 54
ARTICLE 15: PERFORMANCE AND PAYMENT BONDS 54
ARTICLE 16: SIGNATURES 54
ATTACHMENTS
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GENERAL CONDITIONS
ARTICLE 1: DEFINITIONS
CHANGE ORDER, a written order or directive from the Owner or its authorized
• agent, including the Designer, directing or authorizing the Contractor to make
changes in the work required by the Contract, including any increase, decrease, or
other equitable adjustment in the Contract price or in the time for performing the
Contract. The term "equitable adjustment' shall be considered synonymous with
Change Order .
• CLERK OF THE WORKS, the Owner's on-site representative, if any.
CONTRACT, this agreement between the Owner and the Contractor to provide the
construction services required pursuant to the Contract Documents.
! CONTRACT DOCUMENTS, The Proposal of Costello Dismantling Co., Inc. dated
August 28, 2000 (Revised), the Asbestos Abatement Project Manual Former
Richards Leather Co. dated June 5, 2000, General Conditions, Supplementary
General Conditions, Plans and Specifications. Change Orders, procedures and
forms attached to the Contract, all of which constitute one instrument.
! CONTRACTOR or GENERAL Contractor or a pronoun in place thereof, the party
Contracting to perform the construction services required by the Contract.
DESIGNER, or the "Architect', Beta Engineering, 6 Blackstone Valley Place,
Lincoln, MA 02865, hired by the Owner to oversee construction to ensure that it is
• conducted in accordance with the Contract.
DRAWINGS, are the graphic and pictorial portions of the Contract Documents,
wherever located and whenever issued, showing the design, location and
dimensions of the Work, generally including plans, elevations, sections, details,
• schedules and diagrams.
GENERAL LAWS, the General Laws of the Commonwealth as amended, including
any rules, regulations, and administrative procedures implementing said laws.
PROJECT, is the total construction of which the Work performed under the Contract
• Documents may be the whole or a part and which may include construction by the
Owner or by separate contractors.
OWNER, the City of Salem through its authorized representatives.
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OWNER'S REPRESENTATIVE, the Owner's Project representative, who shall
• oversee the performance of the Designer and the Contractor, if any.
SPECIFICATIONS, are that portion of the Contract Documents consisting of the
written requirements for materials, equipment, construction systems, standards and
workmanship for the Work, and performance of related services.
SUPERINTENDENT or SUPERVISOR, the person employed by the Contractor to
be in attendance at the project site throughout the prosecution of construction
services under the Contract.
WORK, means the construction and services required by the Contract Documents,
A whether completed or partially completed, and includes all other labor, materials,
equipment and services provided or to be provided by the Contractor to fulfill the
Contractor's obligations. The Work may constitute the whole or a part of the
Project.
ARTICLE 2: DESCRIPTION OF WORK, INTERPRETATION, INTENT
1. The Contractor agrees to do and complete all the work and furnish all the
materials required by the Contract Documents in a proper, thorough, and
workmanlike manner, in accordance with the terms of the Contract and customary
construction practice.
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2. All plans, general and detailed, are to be deemed a part of the Contract, and the
plans and specifications and Contract are to be considered together, and are
intended to be mutually complementary, so that any work shown on the plans,
though not specified in the specifications, and any work specified in the
• specifications, though not shown on the plans, is to be executed by the Contractor
as a part of the Contract. Figured dimensions are to prevail over scale. All things
which in the opinion of the Designer may reasonably be inferred from the Contract
Documents are to be executed by the Contractor in accordance with the terms of
the Contract. In the event of any conflict among the Contract Documents, the
Documents shall be construed according to the following priorities: Highest priority:
• Addenda, later date to take precedence; Second priority: General Conditions; Third
priority: Specifications; Fourth priority: Plans (Drawings).
3. The Contractor shall be responsible to the Owner for the acts and omissions of its
subcontractors and suppliers and of all persons directly or indirectly employed by it
• in connection with the work required under the Contract.
4. The Table of Contents, titles, headings, and marginal notes or sub-scripts
contained herein are solely to facilitate references and in no way affect or limit the
interpretation of the provisions to which they refer.
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5. Where codes, standards, requirements and publications of public and private
• bodies are referred to in the specifications, references shall be understood to be to
the latest revision prior to the date of receiving bids, except where otherwise
indicated.
6. Where no explicit quality or standards for material or workmanship are
established for work, such work is to be of good quality for the intended use and
consistent with the quality of the surrounding work and of the construction of the
Project generally.
7. All manufactured articles, materials, and equipment shall be applied, installed,
connected, erected, used, cleaned, and conditioned in accordance with the
• manufacturer's written or printed directions and instructions unless otherwise
indicated in the Contract Documents.
! ARTICLE 3: GENERAL PERFORMANCE OBLIGATIONS OF THE CONTRACTOR
In general, the Contractor shall:
1. Plans and Specifications
• Carefully study the Contract Documents and any orders that shall be made
and given as authorized in the Contract.
2. Dimensions
•, Before starting the work and at frequent intervals during the progress thereof,
carefully compare all specifications, plans, orders, field conditions, information
furnished by the Owner, drawings, all figures, dimensions, line marks, and scales,
and all directions of the Designer relating to the work, so there will be a clear
understanding regarding the work to be performed under the Contract, and at once
submit questions or discrepancy to the Designer for review. If the Contractor
0 proceeds with the work without such notice to the Designer, having discovered such
discrepancies, or if by reasonable study of the contract documents, the contractor
could have discovered such discrepancies, the contractor shall bear all costs arising
therefrom.
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3.Mechanical. Electrical and Fire Protection Drawings (Deleted)
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• 4. Requests For Information
(a) The Contractor may submit requests for information to the Designer to
help facilitate the Contractor's performance of the Contract. Prior to submitting each
request for information, the Contractor shall first carefully study and compare the
• Contract Documents, field conditions, other Owner-provided information, Contractor
prepared Coordination Drawings, and prior Project Correspondence and
documentation to determine that the information to be requested is not reasonably
obtainable from such sources.
(b) Each request for information shall be submitted to the Designer, in writing,
• in such form and with such accompanying information as the Designer may require
for such purpose. Each request for information shall identify the specific sources
which were reviewed by the Contractor in its efforts to determine the information
requested, and a statement to the effect that the information being requested could
not be determined from such sources.
• (c)The Contractor shall submit each request for information sufficiently in
advance of the date by which such information is required in order to allow the
Designer sufficient time, in the Designer's professional judgment, to permit adequate
review and response and to permit Contractor compliance with the latest
construction schedule.
(d)The Contractor shall maintain a log at the Project site that sequentially
numbers and lists each request for information. This log shall also contain the
Drawing reference or Specification section to which the request pertains, the date of
the request, to whom the request was made, by whom the request was made, the
• nature of the request, and the resolution thereof. This log shall be reviewed at each
Project meeting and the resolution of requests for information shall be made part of
the minutes of such meetings.
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5. Shop Drawings, Product Data and Samples
(a) Shop Drawings are drawings, diagrams, schedules and other data
specifically prepared for the Work by the Contractor or a Subcontractor, Sub-
subcontractor, manufacturer, supplier or distributor to illustrate some portion of the
Work.
(b) Product Data are illustrations, standard schedules, performance charts,
instructions, brochures, diagrams and other information furnished by the Contractor
to illustrate materials or equipment for some portion of the Work.
(c) Samples are physical examples which illustrate materials, equipment and
workmanship and establish standards by which the Work will be judged.
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(d) The Contractor shall review, approve and submit to the Architect Shop
Drawings, Product Data, Samples and similar submittals required by the Contract
Documents with reasonable promptness and in such sequence as to cause no delay
in the Work or in the activities of the Owner or of separate contractors. Submittals
• made by the Contractor may be returned without action.
(e) By approving and submitting Shop Drawings, Product Data, Samples,
and similar submittals the Contractor thereby represents that the Contractor has
determined and verified all dimensions, quantities, field dimensions, relations to
existing work, coordination with work to be installed later, coordination with
information on previously accepted Shop Drawings, Product Data, Samples, or
similar submittals and verification of compliance with all the requirements of the
Contract Documents. The accuracy of all such information is the responsibility of
the Contractor. In reviewing Shop Drawings, Product Data, Samples, and similar
submittals the Architect shall be entitled to rely upon the Contractor's representation
! that such information is correct and accurate.
(f) The Contractor shall perform no portion of the Work requiring submittal
and review of Shop Drawings, Product Data, Samples or similar submittals until the
respective submittal has been approved by the Architect. Such Work shall be in
A accordance with approved submittals.
(g) The Contractor shall not be relieved of responsibility for deviations from
requirements of the Contract Documents by the Architect's approval of Shop
Drawings, Product Data, Samples or similar submittals unless the Contractor has
specifically informed the Architect in writing of such deviation at the time of submittal
and the Architect has given written approval to the specific deviation. The
Contractor shall not be relieved of responsibility for errors or omissions in Shop
Drawings, Product Data, Samples or similar submittals by the Architect's approval
thereof.
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(h) The Contractor shall direct specific attention, in writing or on resubmitted
Shop Drawings, Product Data, Samples or similar submittals, to revisions other than
• those requested by the Architect on previous submittals.
(i) Informational submittals upon which the Architect is not expected to take
responsive action may be so identified in the Contract Documents.
• 0) When professional certification of performance criteria of materials,
systems or equipment is required by the Contract Documents, the Architect shall be
entitled to rely upon the accuracy and completeness of such calculations and
certifications.
• 6. Notices, Permits, Conformance with Codes.
(a) Give all notices, secure all permits, including the building permit, pay all
charges, fees, water and other rates except the building permit fee as described
hereafter, give personal supervision to the work, keep a full time competent
superintendent and a sufficient number of competent employees on the site until the
• completion of the work, carry on the work to the satisfaction of the Owner and the
Designer with all proper speed and in accordance with the requirements of law and
of all other public authorities, and furnish the Owner with such information and
vouchers relative to the work, the materials therefor, and the persons employed
thereon, as the Owner shall from time to time request. Notwithstanding the
foregoing, the Contractor shall not be required to pay the town building permit fee or
46 fees related to inspections by the Building Department's personnel or consultants.
(b) It is not the Contractor's responsibility to ascertain that the Contract
Documents are in accordance with applicable laws, statutes, ordinances, building
codes, and rules and regulations. However, if the Contractor observes that portions
` of the Contract Documents are at variance therewith, the Contractor shall promptly
notify the Architect and Owner in writing, and necessary changes shall be
accomplished by appropriate Modification.
(c) If the Contractor performs Work knowing it to be contrary to laws, statutes,
• ordinances, building codes, and rules and regulations without notice to the Architect
and Owner, the Contractor shall assume full responsibility for such Work and shall
bear the attributable costs.
7. Communications Facilitating Contract Administration
• Except as otherwise provided in the Contract Documents or when direct
communications have been specially authorized, the Owner and Contractor shall
endeavor to communicate through the Designer. Communications by and with the
Designer's consultants shall be through the Designer. Notwithstanding the
foregoing, the Contractor shall communicate directly with the Owner's
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Representative whenever requested to do so by the Owner's Representative.
Communications by and with subcontractors and material suppliers shall be through
• the contractor.
8. Site Layout, Registered Engineer, Survey (Deleted)
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• 9. Sheeting, Shoring, Bracing
Prevent, by sheeting and shoring or bracing, if necessary, any caving or
bulging of the sides of any excavation made by the Contractor leaving sheeting and
shoring in place, and if any is removed, fill solid the spaces left thereby.
• 10. De-Watering
Provide pumping, drainage, and disposal of all water and/or whatever flows in
any conduit interfered with by the Contractor so that no puddle or nuisance will be
caused by water or flood; protect the work from injury by water, frost, wind, fire,
• accident, or other cause.
11. Correction of Work
The Contractor shall promptly correct Work rejected by the Architect or failing
to conform to the requirements of the Contract Documents, whether observed
before or after Substantial Completion and whether or not fabricated, installed or
completed. The Contractor shall bear costs of correcting such rejected Work,
including additional testing and inspections and compensation for the Architect's
services and expenses made necessary thereby. If the Contractor fails to
commence the correction of Work rejected by the Architect, within seven days of
• notice to the Contractor of such rejection, the Owner may use other contractors to
correct the work, in which event the Owner shall be entitled to backcharge the
Contractor for all costs related to such corrections.
12. Sanitary Facilities
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Unless otherwise provided in the Contract, provide and maintain buildings for
• the sanitary necessities of all persons employed on the work, including the Clerk of
Work and the Owner's Representative, beginning with the first workman at the site
as follows:
(a) at approved locations near the work;
(b) on the basis of not less than the number of units required by the
standards of the "Occupational Safety and Health Act of 1970" (OSHA);
• (c) in a clean, sanitary condition at all times;
(d) of an approved chemical or incinerator type, or water closets, if permitted
(if an incinerator type, a sufficient number shall be provided to permit daily
incineration of 33 1/3%); and
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(e) adequately screened to be inaccessible to flies.
13. Temporary Site Offices (Deleted)
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14. Telephone, Heat, Utilities
Contractor shall be responsible for furnishing any temporary utilities required
to perform the work at its own costs.
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15. Competent Workers: Superintendent
(a) The Contractor shall employ only competent workers and whenever the
Owner shall notify the Contractor, in writing, that any worker is in its opinion,
incompetent, unfaithful, disorderly, or otherwise unsatisfactory, such
• employee shall be discharged from the work and shall not again be employed
on the Project except with the consent of the Owner.
(b) Duties and Qualifications of the Superintendent
The Superintendent shall be a competent and responsible employee,
satisfactory to the Owner, who is regularly employed by the Contractor and is
designated by it as its representative to be in full time attendance at the
Project site throughout the prosecution and progress of the construction of
the work. The Superintendent shall be responsible for coordinating all the
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work of the Contractor and the subcontractors. The Superintendent shall be
licensed consistent with the Massachusetts Building Code. The
• Superintendent's resume shall be submitted to the Owner prior to
commencement of construction and must demonstrate to the Owner's
reasonable satisfaction that the Superintendent has satisfactorily performed
similar duties on previous construction projects similar to the Project.
(c) The Contractor shall ensure that all the workmen on the Project shall not
intermingle with the student population or otherwise enter Owner-occupied
premises, except with the knowledge and approval of the Owner or the
School Department. The Owner or the principal of the School shall have the
ability to immediately stop work in an Owner-occupied area in the event such
• work has not been authorized in advance, or is being performed in a manner
that threatens the safety of the building occupants, or otherwise interferes
with the Department's educational program.
16. Subcontractors
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The Contractor shall submit to the Designer a listing of the names and
categories of work to be performed by subcontractors (other than filed
subcontractors)for review and approval prior to the subcontractor or sub-
subcontractors performing services on the Project. The Designer's review of such
listing shall be limited to a check on the qualifications and responsibility of the
subcontractor or sub-subcontractor proposed, and the approval shall not be
unreasonably withheld. The Contractor shall require each subcontractor to be
bound to the Contractor by the terms of the Contract Documents and to assume
toward the Contractor all the obligations and responsibilities which the Contractor
assumes toward the Owner and the Designer. Each subcontract agreement shall
0 preserve and protect the rights of the Owner and the Designer under the Contract
Documents, with respect to the work to be performed by the subcontractor and shall
allow the subcontractor the benefit of all rights, remedies, and redress against the
Contractor that the Contractor, by the Contract Documents, has against the Owner.
Filed subcontractors and the Contractor shall execute the statutory Form of
subcontract found in G.L. c.149 §44F.
17. Safety Requirements
(a) The Contractor shall take reasonable precautions for safety, of, and shall
provide reasonable protection to prevent damage, injury or loss to:
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1. employees on the Work and other persons who may be affected thereby:
2. the Work and materials and equipment to be incorporated therein,
whether in storage on or off the site, under care, custody or control of the
Contractor or the contractor's Subcontractors or Sub-subcontractors; and
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3. other property at the site or adjacent thereto, such as trees, shrubs, lawns,
walks, pavements, roadways, structures and utilities not designated for
• removal, relocation or replacement in the course of construction.
(b) The Contractor shall give notices and comply with applicable laws,
ordinances, rules, regulations and lawful order of public authorities bearing on safety
of persons or property or their protection from damage, injury, or loss.
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(c) The Contractor shall erect and maintain, as required by existing conditions
and performance of the Contract, reasonable safeguards for safety and protection,
including posting danger signs and other warnings against hazards, promulgating
safety regulations and notifying owners and users of adjacent sites and utilities.
• (d) When use or storage of explosives or other hazardous materials or
equipment or unusual methods are necessary for execution of the Work, the
Contractor shall exercise utmost care and carry on such activities under supervision
of properly qualified personnel.
• (e) The Contractor shall promptly remedy damage and loss (other than
damage of loss insured under property insurance required by the contract
Documents)to property referred to in Clauses 17(a)2 and 17(a)3 caused in whole or
in part by the contractor, a Subcontractor, a Sub-subcontractor, or anyone directly or
indirectly employed by any of the, or by anyone for whose acts they may be liable
• and for which the Contractor is responsible except damage or loss attributable to
acts or omissions of the Owner or Architect, or anyone directly or indirectly
employed by either of them, or by anyone for whose acts either of them may be
liable, and not attributable to the fault or negligence of the Contractor.
(f) The Contractor shall designate a responsible member of the Contractor's
• organization at the site whose duty shall be the prevention of accidents. This
person shall be the Contractor's superintendent unless otherwise designated by the
Contractor in writing to the Owner and Architect.
(g) The Contractor shall not load or permit any part of the construction or site
to be loaded so as to endanger its safety.
(h) If the Contractor uses or stores toxic or hazardous substances it is subject
to G.L. c. 111 F, section 2, the 'Right to Know" law and regulations
promulgated by the Department of Public Health, 105 CMR 670, the
Department of Environmental Quality Engineering, 310 CMR 33, and the
• Department of Labor and Industries, 441 CMR 21; and must post a
Workplace Notice obtainable from the Department of Labor and Industries.
(i) Compliance with Dig Safe Laws
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(i) Dig-Safe is the Utility Underground Plant Damage Prevention
System, 111 South Bedford Road, Burlington, Massachusetts 01803,
• 1-800-322-4844.
(ii) The Contractor must notify Dig-Safe of contemplated excavation,
demolition, or explosive work in public or private ways, and in any
utility company right of way or easement, by certified mail, with a copy
to Department of Environmental Quality Engineering.
(iii) This notice must be given at least seventy-two (72) hours prior to
the work, but not more than sixty (60) days before the work is to be
done. Such notice shall set forth the name of the street or the route
number of the way and an accurate description of the location and
• nature of the proposed work.
(iv) Dig-Safe is required to respond to the notice within seventy-two
(72) hours of receipt by designating the location of pipes, mains, wires,
or conduits at the site. The Contractor shall not commence work until
Dig-Safe has responded. The work shall be performed in such
manner and with reasonable precautions taken to avoid damage to
utilities under the surface at the work location.
(v) The Contractor shall provide the superintendent with current Dig-
Safe regulations and a copy of G.L. c. 82, §40.
(vi) Any costs related to the services performed by Dig-Safe shall be
borne by the Contractor.
Q) No blasting shall be permitted without the prior approval of the Designer
and the Owner, who may require any reasonable provisions relating thereto.
(k) The Contractor shall provide and maintain in good operating condition
suitable and adequate fire protection equipment and services, and shall
comply with all reasonable recommendations regarding fire protection made
by the representatives of the fire insurance company carrying insurance on
the Work or by the local fire chief or fire marshal. The area within the site
limits shall be kept orderly and clean, and all combustible rubbish shall be
promptly removed from the site.
(1) The Contractor shall at all times protect excavations, trenches, buildings
• and materials, from rain water, ground water, backup or leakage of sewers,
drains and other piping, and from water of any other origin and shall remove
promptly any accumulation of water. The Contractor shall provide and
operate all pumps, piping and other equipment necessary to this end.
(m) The Contractor shall remove snow and ice which might result in damage
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or delay.
(n) All construction and blasting operations shall be conducted in accordance
j • with the City's Noise Control ordinance, a copy of which is incorporated into
this agreement.
18. Methods, Means, Coordination, Cutting and Patching
• (a) The Contractor shall supervise and direct the work, using its best skill and
attention. It shall be solely responsible for all construction means, methods,
techniques, and procedures and for coordinating all portions of the work
under the Contract.
(b)The Contractor shall be responsible for the proper fitting of all work and
• the coordination of the operations of all trades, subcontractors, or
materialmen engaged upon the work.
(c)All necessary cutting, coring, drilling, grouting, and patching to fit together
the several parts of the work shall be done by the Contractor.
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(d) The Contractor shall not damage or endanger a portion of the Work or
fully or partially completed construction of the Owner or separate contractors
by cutting, patching or otherwise altering such construction, or by excavation.
The Contractor shall not cut or otherwise alter such construction by the
• Owner or a separate contractor except with written consent of the Owner and
of such separate contractor; such consent shall not be unreasonably
withheld. The Contractor shall not unreasonably withhold from the Owner or
a separate contractor the Contractor's consent to cutting or otherwise altering
the Work.
• (e) The Contractor shall coordinate and supervise the work performed by
subcontractors to the end that the work is carried out without conflict between
trades and so that no trade, at any time, causes delay to the general progress
of the work. The Contractor and all subcontractors shall at all times afford
each trade, any separate Contractor, or the Owner, every reasonable
opportunity for the installation of work and the storage of materials and the
Contractor shall cooperate with the School Department during the delivery,
moving and storage of the School Department's existing or new furnishings
and equipment.
19. Debris, Cleaning Up
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(a) The Contractor shall not permit the accumulation of debris, both exterior
and interior, and the work area shall at all times be kept satisfactorily clean.
At completion of the work the Contractor shall remove from and about the
project waste materials, rubbish, the Contractor's tools, construction
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equipment, machinery and surplus materials. Immediately prior to the
Designer's inspection for substantial completion, the Contractor shall
• completely clean the premises. Concrete and ceramic surfaces shall be
cleaned and washed. Resilient coverings shall be cleaned, waxed and
buffed. Woodwork shall be dusted and cleaned. Sash fixtures and
equipment shall be thoroughly cleaned. Stains, spots, dust, marks and
smears shall be removed from all surfaces. Hardware and all metal surfaces
• shall be cleaned and polished. Glass and plastic surfaces shall be thoroughly
cleaned by professional window cleaners. All damaged, broken or scratched
glass or plastic shall be replaced by the Contractor at the Contractor's
expense. If the Contractor fails to clean up as provided in the Contract
Documents, the owner may do so and the cost thereof shall be charged to
the Contractor.
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(b)The Contractor shall remove debris from the site of the work and dispose
of it at any private or public dump that the Contractor may choose. The
Contractor shall make all arrangements and obtain any approvals necessary
from the Owners or officials in charge of such dumps and shall bear all cost,
including fees resulting from such disposal. Garbage shall be removed daily.
(c) No open fire shall be permitted on site.
(d) Chemical Waste
• Chemical waste shall be stored in corrosion resistant containers,
removed from the Project site, and disposed of not less frequently than
monthly unless directed otherwise. Disposal of chemical waste shall be in
accordance with standard established practices. Fueling and lubricating of
vehicles and equipment shall be conducted in a manner that affords the
maximum protection against spills and evaporation. Lubricants to be
discarded or burned shall be disposed of in accordance with approved
procedures meeting all applicable federal, state, and local regulations. In the
event of an oil or hazardous materials spill large enough to violate federal,
state, or applicable local regulations, the Designer shall be notified
immediately. The Contractor shall be responsible for immediately cleaning
up any oil or hazardous waste spills resulting from its operations. Any costs
incurred in cleaning up any such spills shall be borne by the Contractor.
20. Use of Site. Site Protection
• (a) The right of possession of the premises and the improvements made
thereon by the Contractor shall remain at all times in the Owner. The
Contractor's right to entry and use thereof arises solely from the permission
granted by the Owner under the Contract Documents. The Contractor shall
confine the Contractor's apparatus, the storage of materials and the
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operations of the Contractor's workmen to the limits indicated by law,
ordinances, permit, the Contract Documents and/or directions of the Architect
• and shall not unreasonably encumber the premises with the Contractor's
materials. The Contractor shall provide the Owner and Architect access to
the Work at all times.
(b) The Contractor shall take precaution during the execution of work
involving demolition not to disturb or damage any existing structures,
• landscaping, walks, roads, or other items scheduled to remain. The
Contractor shall restore any damaged items to original condition and as
directed by the Designer.
(c) The Contractor shall provide and erect acceptable barricades, fences,
signs, and other traffic devices to protect the work from traffic and the public.
•
21. Weather Protection
The Contractor shall install weather protection and provide adequate heat
inside the building from November 1 to March 31, as required by G.L. c. 149,
§44F(1), to protect the materials and systems installed and prevent their
deterioration.
22. Taxes
As a public project, the Contractor shall be entitled to exemptions from the
• state sales tax and the Owner will provide a tax exemption number. The Contractor
shall pay all other employment, consumer, use and similar taxes for the project.
23. Contractor's Year 2000 Obligations (Deleted)
•
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ARTICLE 4: CONTROL OF MATERIALS AND EQUIPMENT
• 1. Source of Materials
Materials and Equipment to be installed as part of the Contract (both or either
of which are hereinafter referred to as "Materials") shall be new, unused, of recent
manufacture, and assembled and used in accordance with the best construction
• practices.
2. "Or Equal' Clause
Except where the Contract requires the use of a proprietary Material, the
• words "or equal' are understood to follow the name of any maker, vendor, or
product specified to be used in the Contract Documents. To determine if Materials
or articles proposed by the Contractor are equal to those specified, the Contractor
shall provide to the Designer all information and samples the Designer shall
reasonably require to determine whether the Materials or articles proposed are at
least equal in quality, durability, appearance, strength, and design to the Material or
• articles named or described, and will perform at least equally the functions imposed
by the design. See G.L. c.30, §39M.
3. Samples and Tests
• (a) Any Materials to be used in the work may be tested or inspected after
reasonable notice by the Designer and may be rejected if they fail to comply
with specified tests. Except as otherwise provided in the Contract, all testing
of Material specifically requested by the Designer will be paid for by the
Owner, except that the cost of testing of Materials that fail the testing criteria
shall be borne by the Contractor. If the Contractor requests permission to
• use a Material that was not specified in the Contract Documents and the
Designer requires testing of such Material before approving its use, the
Contractor shall pay for such testing. Any additional cost, or any loss or
damage arising from the substitution of any material or any method for those
originally specified shall be borne by the Contractor, notwithstanding approval
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or acceptance of such substitution by the Owner or the Designer, unless such
• substitution was made at the written request or direction of the Owner or the
Designer.
(b) The source of Material proposed by the Contractor shall be designated in
time to permit all required testing and inspection before the Material is
needed for incorporation into the work. The Contractor shall have no claim
• for delays or time extensions due to testing if it fails to designate the
proposed source or to order the Material in time to provide for adequate
testing and inspection. Necessary arrangements shall be made to permit the
Designer to make factory, shop, or other inspection of Materials or equipment
ordered for the work, in process of manufacture or fabrication, or in storage
• elsewhere than the site of the work.
(c) The Contractor shall furnish the Designer with samples of the Materials it
proposes to use in the execution of the work in sufficient time to afford the
Designer the opportunity to adequately review and, if necessary, arrange for
testing of such Materials.
4. Deviation from Contract Requirements
The Contractor shall not be relieved of responsibility for deviations from
requirements of the Contract Documents by the Architect's approval of shop
• drawings, product data, samples or similar submittals unless the Contractor has
specifically informed the Architect in writing of such deviation at the time of submittal
and the Architect has given written approval to the specific deviation. The
Contractor shall not be relieved of responsibility for errors or omissions in shop
drawings, product data, samples or similar submittals by the Architect's approval
thereof.
•
5. Delivery and Storage
(a) Materials and equipment shall be progressively delivered to the site so
that there will be neither delay in the progress of the work nor an undue
accumulation of Materials that are not to be used within a reasonable time.
(b) Materials stored off site shall be stored at the expense of the Contractor in
a manner that preserves their quality and fitness for the work. Material shall
be placed on wooden platforms or other hard clean surfaces and not on the
ground and shall be properly protected.
•
(c) If the Contractor requests the Designer's inspection of Materials stored
outside of Massachusetts, the Contractor shall assume the Designer's
reasonable costs for travel, room, and meals associated with such inspection.
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•
(d) Materials stored either at the Project site or at some other location agreed
upon in writing shall be located so as to facilitate prompt inspection and may
• again be inspected prior to their use in the work.
(e) All storage sites shall be restored to their original condition by the
Contractor at its expense.
• (f) The Contractor shall take charge of and be liable for any loss of or injury to
the Materials delivered at or in the vicinity of the place where the work is
being done; it shall notify the Designer as soon as any such materials are so
delivered; and allow them to be examined by the Designer.
0 6. Payment for Stored Materials
The Contractor may request, in accordance with the provisions of Article 7,
payment for those Materials purchased expressly for the work under the Contract
that are delivered to the site or stored at a location agreed upon by the Designer,
• provided the Contractor transfers absolute legal title to such Materials to the Owner
and provides the Owner with a certificate of insurance insuring the Owner against
loss, destruction, or disappearance of said Materials until such time as they may be
incorporated in the work. The Contractor must submit a proper bill of sale to the
Owner accompanied by certified copies of paid invoices or other acceptable proof of
the Contractor's ownership of said Materials, as a prerequisite to payment for stored
• Materials under this Article and Article 7.
7. Refection of Defective Materials
The Designer may reject Materials if it reasonably determines that such
Materials do not conform to the Contract Documents. No rejected Materials, the
defects of which have been subsequently corrected, shall be used in the work
except with the permission of the Designer. No extra time shall be allowed for
completion of the work due to the rejection of non-conforming Materials.
8. Rejection of Defective Work
The Designer's inspection of the work shall not relieve the Contractor of any
of its responsibilities to fulfill its Contract obligations and defective work shall be
corrected. Unsuitable work may be rejected by the Designer, notwithstanding that
such work and Materials have been previously overlooked or misjudged by the
• Designer and accepted for payment. If the work or any part thereof shall be found
defective at any time before the final acceptance of the whole work, the Contractor
shall forthwith correct such defect in a manner satisfactory to the Designer and if
any Material brought upon the site for use in the work, or selected for the same,
shall be condemned by the Designer as unsuitable or not in conformity with the
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Contract requirements, the Contractor shall forthwith remove such Materials form
the vicinity of the work. Nothing in the Contract shall be construed as vesting in the
• Contractor any right of property in the Materials used after they have been attached
or affixed to the work or the soil; but all such Materials shall, upon being so attached
or affixed, become the property of the Owner. Approvals or determinations of
acceptability of Materials by the Designer shall not in any way be construed to
relieve the Contractor of its full responsibilities under the Contract.
•
ARTICLE 5: JOB MEETINGS, PROSECUTION AND PROGRESS, AND
LIQUIDATED DAMAGES
1. Job Meetings
• (a) Pre-Construction Conference
Prior to commencement of the work, the Contractor shall meet in
conference with representatives of the Owner and Designer to discuss and
develop mutual understandings relative to administration of the quality
assurance program, safety program, labor provisions, the schedule of work,
• and other Contract procedures.
(b)Weekly Meetings
The Contractor shall arrange for and attend weekly job meetings with
the Designer and such other persons as the Designer and the Owners
• Representative may from time to time wish to have present. The Contractor
shall be represented by a principal, project manager, general superintendent
or other authorized representative, as well as by the Contractor's own
superintendent. An authorized representative of any subcontractor or sub-
subcontractor shall attend such meetings if the representative's presence is
requested by the Designer. Such representatives shall be empowered to
• make binding commitments on all matters to be discussed at such meetings
including costs, payments, Change Orders, time schedules and manpower.
Any notices required under the Contract may be served on such
representatives.
• 2. Contract Time, Schedules, Time Extensions
(a) The Contract time commences immediately from the date that the
executed copy of the Contract accompanied by a NOTICE TO PROCEED is
mailed or presented to the Contractor. The Contractor shall begin work on
the Project within ten (10) days of the date that a properly executed copy of
the Contract is delivered to the Contractor, unless otherwise ordered in
writing by the Owner. The Contractor shall proceed expeditiously with
adequate forces and shall achieve Contract Completion within the Contract
Time. The Contractor shall carry out work on a continuous basis unless
otherwise authorized by the Owner in writing.
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(b) Prior to commencement of the work, the Contractor shall submit to the
• Designer and the Owner's Representative a progress schedule in satisfactory
form, showing in detail its proposed progress for the construction of the
various parts of the work and the proposed times for receiving Materials
required. The Progress Schedule shall be based on an orderly progression
of the work, allowing adequate time for each operation (including adequate
• time for submission and review of submittals), and leading to a reasonable
certainty of Contract Completion by the date established in the Agreement.
The Progress Schedule will be reviewed by the Designer and Owner for
compliance with the requirements of this Article. The Contractor shall, at the
end of each month, or more often if required, furnish the Designer and Owner
an updated schedule showing actual progress of the various parts of the work
• in comparison with the originally proposed progress schedule submitted to
the Designer for its review and comment. If the Designer or the Owner's
Representative raise any objections to progress schedules submitted by the
Contractor, the Contractor shall immediately address and resolve such
objections to their reasonable satisfaction. Contractor's schedules shall also
• comply with all other requirements of the Contract Documents relating to the
Construction schedule.
(c)Time is of the essence in the performance of work under the Contract
which shall be completed on or before October 31, 2000. The Contractor
• may only be entitled to an extension of time if the time for completion of the
work is extended due to the issuance of Change Orders, acts of God, labor
disputes, and other events beyond the control of the Contractor if the
Contractor can demonstrate to the reasonable satisfaction of the Owner,
upon the recommendation of the Designer, that the critical path schedule for
the Project has been adversely impacted by such events, and that the
• Contractor cannot revise its critical path schedule to eliminate the need for a
time extension. Delays caused by suppliers, subcontractors, and sub-
subcontractors shall be considered to be within the control of the Contractor.
Should the Contractor require additional time to complete the work, it shall
document its reasons therefor and request an extension of time at the time
the alleged delay occurred, as provided in this Article and Article 6. Failure to
notify the Owner of any delay as provided in this Article shall preclude the
Contractor from requesting and obtaining a time extension due to said delay.
Requests for extensions of time shall be submitted as a Change Order
request to the Owner under Article 6.
(d) No extension of time shall be granted because of seasonal or abnormal
variations in temperature, humidity or precipitation, which conditions shall be
wholly at the risk of the Contractor, whether occurring within the time
originally scheduled for completion or within the period of any extension
granted.
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• (e) The Contractor hereby agrees that the Contractor shall have no claim for
damages of any kind against the Owner or the Designer on account of any
delay in the commencement or performance of any of the work or any delay
or suspension of any portion of the work, whether such delay is caused by
the Owner, the Designer, or otherwise. The Contractor acknowledges that
the Contractor's sole remedy for any such delay and/or suspension will be an
• extension of time as provided in this Article.
3. Substantial Completion, Final Completion
(a) Substantial completion is the stage in the progress of the work when the
• work or designated portion thereof is sufficiently complete in accordance with
the Contract Documents so the Owner can occupy or utilize the work for its
intended use and only minor items which can be corrected or completed
without any material interference with the Owner's use of the work remain to
be corrected or completed.
• (b) When the Contractor considers that the work, or a portion thereof
designated in the Contract Documents for separate completion is
substantially complete, the Contractor shall submit to the Designer a list of
items to be completed or corrected, all special warranties and permits
required by the Contract Documents, endorsed by the Contractor and in a
• form reasonably acceptable to the Designer. The failure to include any items
on the list mentioned in the preceding sentence does not alter the
responsibility of the Contractor to complete all work in accordance with the
Contract Documents. When the Designer on the basis of an inspection
determines that the work or designated portion thereof is substantially
complete and the other conditions have been met, the Designer will then
• prepare a Certificate of Substantial Completion which shall establish the date
of substantial completion, shall state the responsibilities of the Owner and the
Contractor for security, maintenance, heat, utilities, damage to the work, and
insurance, and shall fix the time within which the Contractor shall complete
the items listed therein. Warranties required by the Contract Documents
shall commence on the date of substantial completion of the work or
designated portion thereof unless otherwise provided in the Certificate of
Substantial Completion. The Certificate of Substantial Completion shall be
submitted to the Owner and Contractor for their written acceptance of the
responsibilities assigned to them in such Certificate.
• (c) The Designer will conduct inspections to determine the date or dates of
Substantial Completion and the date of final completion, will receive and
forward to the Owner for the Owner's review and records written warranties
and related documents required by the Contract and assembled by the
Contractor, and will issue a final Certificate for payment upon compliance with
•
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the requirements of the Contract Documents.
•
(d) The Owner shall be entitled to occupy all or a portion of the work upon the
Designer's issuance of a Certificate of Substantial Completion covering the
areas to be occupied.
•
4. Liquidated Damages
(a) Since time is of the essence and since the amount of damage and loss to
the Owner which will result from the Contractor's failure to turn the Project
over to the Owner for use and occupancy within the completion date specified
• in the Contract will be difficult or impracticable to ascertain, the Contractor
shall pay to the Owner the sum of$500 for each and every calendar day that
the use and occupancy date for the entire project exceeds the Contract
completion date, as extended by any authorized extension of time granted
pursuant to Article 6. Such moneys shall be paid as liquidated damages, not
• as a penalty, to partially cover losses and expenses to the Owner resulting
from such delayed completion.
(b)The Owner shall recover such liquidated damages by deducting the
amount thereof out of any moneys due or that become due the Contractor,
• and if such moneys are insufficient to cover the liquidated damages, then the
Contractor or its Surety shall pay the Owner the amount due for liquidated
damages.
(c) Permitting the Contractor to continue and finish the work or any portion of
it after the time fixed in the Contract for completion, as extended by an
• authorized extension of time granted in accordance with the provisions of
Article 6, shall not operate as a waiver on the part of the Owner of any of its
rights under the Contract, including the right to assess liquidated damages.
(d) The assessment of liquidated damages or a portion thereof by the Owner
may be waived in the sole discretion of the Owner.
5. Delays
(a) The Owner may delay the commencement of the work, or any part
• thereof, due to unforeseen circumstances or conditions which have a bearing
on the work required under the Contract or for any other reason, if it is
deemed to be in the best interest of the Owner to do so. The Contractor shall
have no claim for damages on account of such delay, but shall be entitled to
so much additional time in which to complete the whole or any portion of the
• 24
•
•
work required under the Contract as the Owner, upon the recommendation of
the Designer shall reasonably determine is justified, pursuant to paragraph
• 2(c), above and subject to the provisions of the following subparagraphs (b)
and (c).
(b) The Owner may, for its convenience, order the Contractor in writing to
suspend, delay, or interrupt all or any part of the work for such period of time
• as it may determine appropriate, provided however, that if there is a
suspension, delay, or interruption for fifteen (15) days or more due to a failure
of the Owner to act within the time specified in the Contract, the Owner shall
make an adjustment in the Contract price for any increase in the cost of
performance of the Contract, but shall not include any profit to the Contractor
on account of such increase; and provided further that the Owner shall not
• make any adjustment in the Contract price under this provision for any
suspension, delay, interruption, or failure to act to the extent that such is due
to any cause for which the Contract provides for an equitable adjustment of
the Contract price under any other Contract provisions.
• (c) The Contractor must submit the amount of a claim under subparagraph
(b) to the Owner in writing as soon as practicable after the end of the
suspension, delay, interruption, or failure to act and, in any event, not later
than the date of final payment under the Contract and, except for costs due to
a written suspension order, the Owner shall not approve any costs in the
claim incurred more than twenty (20) days before the Contractor notified the
• Owner in writing of the act or failure to act involved in the claim.
(d) The Owner and the Contractor agree that they understand that the
preceding subparagraph (c) places a burden on the Contractor to inform the
Owner, as soon as practicable, whenever the Contractor considers that an
• action or inaction of the Owner or its agents could result or has resulted in a
delay in the Project, thereby providing the Owner with the opportunity to take
action to avoid or lessen the time extensions or damages that might be
associated with such action or inaction.
•
6. Use and Occuoancv (Deleted)
•
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• ARTICLE 6: CHANGES IN WORK
1. General
A Change Order request may originate with the Owner, the Designer, or the
Contractor and shall be submitted to the Owner. The Change Order request must
• be made in writing on forms provided by the Designer and in accordance with the
provisions of the Contract.
A Change Order may be submitted for changes in the Contract work,
including but not limited to, changes in: (a) the plans and specifications; (b) in the
• method or manner of performance of the work; and/or (c) in the schedule for
performance of the work.
Whenever a Change Order is requested or ordered, and said Change Order
will cause an adjustment in the Contractor's cost, the Contractor may request an
equitable adjustment in writing in the Contract price.
•
The Owner and the Contractor shall attempt to negotiate an equitable
adjustment in the Contract price before commencement of the pertinent work, or as
soon thereafter as possible. In the absence of an agreement for an equitable
adjustment, the Contractor shall proceed to perform the Change Order work on a
time and material basis as provided in paragraph 3 of this Article, and the Contractor
will provide the Owner with a written notice to that effect.
During the negotiation of an equitable adjustment in Contract price, the
Contractor shall provide the Owner with all cost and pricing data used by him in
computing the amount of the equitable adjustment, and the Contractor shall certify
• that the pricing data used was accurate, complete, and current. The Contractor
shall promptly revise and resubmit such estimate if the Designer determines that it is
not in compliance with the requirements of this Article, or that it contains errors of
fact or mathematical errors. If required by the Designer, in order to establish the
exact cost of new work added or of previously required work omitted, the Contractor
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shall obtain and furnish to the Designer bona fide proposals from recognized
suppliers for furnishing any material included in such work. Such estimates shall be
• furnished promptly so as to occasion no delay in the work, and shall be furnished at
the Contractor's expense. The Contractor shall state in the estimate any extension
of time required for the completion of the work if the change or extra work is
ordered.
• Statutory Contract adjustments made under the provisions of G.L. c.149
§44F shall not be considered a Change Order under this Article, and shall not
entitle the Contractor to any adjustments for overhead, profit, and superintendent,
although the Owner may, for administrative purposes, require that such Contract
adjustments be processed on standard Change Order forms.
• 2. Computing Change Order Requests
Changes in the Contract price shall be determined according to one of the
following methods, or a combination thereof, as determined by the Owner:
• (a) fixed price basis, provided that the fixed price shall be inclusive of items (i)
through (vi) in subparagraph (c)(below) and shall be computed in accordance
with those provisions;
(b) estimated lump sum basis, to be adjusted in accordance with Contract
unit prices, or other agreed upon unit prices provided that the unit prices shall
• be inclusive of all costs related to such equitable adjustment;
(c) time and materials basis, on a not-to-exceed upset amount designated by
the Owner to be subsequently adjusted on the basis of actual costs based on
the following items (i) through (vi):
• (i) the cost at prevailing rates for direct labor, material, and use of
equipment (charges for small tools or "tools of the trade" shall not be
computed in the amount of a Change Order request);
(ii) plus cost of Workmen's Compensation Insurance, union fringe
• benefits, federal unemployment taxes, Federal Social Security, and
Massachusetts Unemployment Compensation, or, as an alternative
the Contractor may elect to use a flat twenty-five (25) percent of the
total labor rate in item (i);
• (iii) plus fifteen (15) percent of item (i)for overhead, superintendence
and profit which will be paid to the Contractor for Item 1 work, which is
the work of the Contractor and all its non-filed subcontractors. The
Contractor and its non-filed subcontractors shall agree upon the
distribution of the fifteen (15) percent as a matter of Contract between
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each other;
• (iv) on Item 2 work, which is the work of filed subcontractors, the
fifteen (15) percent will be allowed to the filed subcontractor; the
Contractor shall receive a seven (7) percent markup on a filed
subcontractor's price;
(v) if the net change is in addition to the Contract price, it shall include
the Contractor's overhead, superintendence, and profit. On any
change which involves a net credit, no allowances for overhead,
superintendence, and profit shall be figured;
(vi) plus actual direct premium cost of payment and performance
• bonds required of the Contractor and its subcontractors, provided
there will be an appropriate credit for bond premiums in the case of a
credit Change Order .
3. Work Performed Under Protest
•
The Contractor shall perform all work as directed by the Owner or the
Designer and if the Owner determines that certain work for which the Contractor has
requested a Change Order does not represent a change in the Contract, or if the
Contractor and the Owner cannot agree to the amount of compensation for a
Change Order , the Contractor shall perform said work under protest and must
• follow the procedures described in the following subparagraphs (a) and (b):
(a) If the Contractor claims compensation for a Change Order not approved
by the Owner, it shall on or before the first working day following
• commencement of any such work or sustaining of any such damage submit
to the Owner's site representatives, or, if there is none to the Designer, a
written statement of the nature of such work or damage sustained. The
Contractor will not be entitled to compensation for any portion of its Change
Order claim related to work performed prior to the Owner's receipt of.the
written statement referred to in the previous sentence.
•
(b) On or before the second (2nd)working day after the commencement of
such work or sustaining of such damage, and daily thereafter, the Contractor
shall file to the extent possible with the clerk of works itemized statements of
the details and costs of such work performed or damage sustained;
• calculated pursuant to paragraph 2(c) of this Article; and unless such
statements shall be made as so required, its claim for such compensation
shall be forfeited and invalid and it shall not be entitled to payment on
account of any such work or damage.
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4. Statutory Provisions - Differing Site Conditions: Timely Decisions
The Contractor's attention is directed to G.L. c. 30, §391, 39J, 39N, 390, and
39P, the provisions of which apply to the Contract.
(a) Differing Site Conditions, G.L. c.30, §39N.
• If, during the progress of the work, the Contractor or the Owner
discovers that the actual subsurface or latent physical conditions encountered
at the site differ substantially or materially from those shown on the plans or
indicated in the Contract Documents either the Contractor or the Owner may
request an equitable adjustment in the Contract price applying to work
• affected by the differing site conditions and an appropriate time extension. A
request for such an adjustment shall be in writing and shall be delivered by
the party making such claim to the other party as soon as possible after such
conditions are discovered. Upon receipt of such a claim form a Contractor, or
upon its own initiative, the Owner shall make an investigation of such physical
conditions, and, if they differ substantially or materially from those shown on
• the plans or indicated in the Contract Documents or from those ordinarily
encountered and generally recognized as inherent in work of the character
provided for in the plans and Contract Documents and are of such nature as
to cause an increase or decrease in the cost of performance of the work or a
change in the construction methods required for the performance of the work
which results in an increase or decrease in the cost of the work, the Owner
• shall upon submission by the Contractor of a properly submitted Change
Order request, make an equitable adjustment in the Contract price and the
Contract shall be modified in writing accordingly.
(b) Timely decision by the Owner or the Designer. G.L. c.30, §39P.
Whenever the Contract requires the Owner or its Designer to make a
decision during construction of the Project on interpretation of the
specifications, approval of equipment, material, or any other approval, or
progress of the work, that decision shall be made promptly and, in any event,
• no later than thirty (30) days after receipt of a written submission for such
decision by the Contractor; but if such decision requires extended
investigation and study, the Owner or the Designer shall, within thirty (30)
days after the receipt of the submission, give the Contractor written notice of
the reasons why the decision cannot be made within the thirty (30) day period
and the date by which the decision will be made.
ARTICLE 7: PAYMENT PROVISIONS
1. Contract Amount
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•
The Owner shall pay and the Contractor shall accept as full compensation for
satisfactorily performing the work required by the Contract, the following amount:
• $231,000.00, per contractor's 8/28/00 revised cost proposal.
2. Schedule of Values
Before the first Application for Payment, the Contractor shall submit to the
• Designer a schedule of values allocated to various portions of the work, prepared in
such form and supported by such data to substantiate its accuracy as the Designer
may require and shall be revised if later found by the Designer to be inaccurate.
This schedule, unless objected to by the Designer or the Owner, shall be used as a
basis for reviewing the Contractor's Applications for Payment.
• 3. Statutory Payment Provisions
The Contractor shall be entitled to payment from the Owner of the Contract
amount, plus any approved additive Change Orders, less any approved deduct
Change Orders, in accordance with the provisions of G.L. c. 30, §39K, if the Project
• is a building project or in accordance with the provisions of G.L. c. 30, §39G, if the
Project is a public works project. The Contractor shall submit an application for
payment in the form required by the Designer and Owner.
(a) Method of Payment on Building Construction Projects. G.L. c. 30 §39K.
• The Owner shall pay the Contractor for the construction of the Project
as follows: within fifteen (15) days after receipt from the Contractor, at the
place designated by the Owner if such a place is so designated, of a periodic
estimate requesting payment of the amount due for the preceding month and
for the materials not incorporated in the work but delivered and suitably
• stored at the site (or at some location agreed upon in writing) to which the
Contractor has title or to which a subcontractor has title and has authorized
the Owner to transfer title to the Contractor, less: (1) a retention based on its
estimate of the fair value of its claims against the Contractor and less (2) a
retention for direct payments to subcontractors based on demands for same
in accordance with the provisions of G.L. c. 30, §39F, and less (3) a retention
• not exceeding five (5) percent of the approved amount of the periodic
payment. After the receipt of a periodic estimate requesting final payment
and within sixty-five (65) days after: (a) the Contractor fully completes the
work or substantially completes the work so that the value of the work
remaining to be done is, in the estimate of the Owner, less than one (1)
• percent of the original Contract price, or (b)the Owner substantially
completes the work and the Owner takes possession for occupancy,
whichever occurs first, the Owner shall pay the Contractor the entire balance
due on the Contract less: (1) a retention based on its estimate of the fair
value of its claims against the Contractor, including liquidated damages, and
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of the cost of completing the incomplete and unsatisfactory items of work and
less (2) a retention for direct payments to subcontractors based on demands
• for same in accordance with the provisions of§39F, or based on the record of
payments by the Contractor to the subcontractors under the Contract if such
record of payment indicates that the Contractor has not paid subcontractors
as provided in §39F. If the Owner fails to make payment as herein provided,
there shall be added to each such payment daily interest at the rate of three
(3) percentage points above the rediscount rate then charged by the Federal
Reserve Bank of Boston commencing on the first (1st) day after said payment
is due and continuing until the payment is delivered or mailed to the
Contractor; provided, that no interest shall be due, in any event, on the
amount due on a periodic estimate for final payment until twenty-four (24)
days after receipt of such periodic estimate from the Contractor at the place
• designated by the Owner, provided further that any request for interest under
this Article shall be submitted by the Contractor to the Owner as a Change
Order request under Article 6. The Contractor agrees to pay to each
subcontractor a portion of any such interest paid in accordance with the
amount due each subcontractor.
• The Owner may make changes in any periodic estimate submitted by
the Contractor and the payment due on said periodic estimate shall be
computed in accordance with the change so made, but such changes or any
requirement for a corrected periodic estimate shall not effect the due date for
the periodic payment or the date for the commencement of interest charges
• on the amount of the periodic payment computed in accordance with the
changes made, as provided herein; provided, that the Owner may, within
seven (7) days after receipt, return to the Contractor for correction, any
periodic estimate which is not in the required form or which contains
computations not arithmetically correct and, in that event, the date of receipt
of such periodic estimate shall be the date of receipt of the corrected periodic
estimate in proper form and with arithmetically correct computations. The
date of receipt of a periodic estimate received on a Saturday shall be the first
working day thereafter.
All periodic estimates shall be submitted to the Owner, or to its
• designee and the date of receipt by the Owner or its designee shall be
marked on the estimate. All periodic estimates shall contain a separate item
for each subtrade category listed in G.L. c. 149, §44F, and a column listing
the amount paid to each subcontractor as of the date the periodic estimate is
filed.
• A certificate of the Designer to the effect that the Contractor has fully
or substantially completed the work shall, subject to the provisions of§39J,
be conclusive for the purposes of this section.
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•
•
4. Application for Payment.
! The Contractor shall, once in each month on the day of the month
corresponding to the date of the Contract or on a date mutually agreed to, on forms
provided and in the manner prescribed by the Designer, submit to the Owner and its
Designer, its Application for Payment showing the total amount of work done to the
time of such estimate and the value thereof. It shall be the sole responsibility of the
Contractor to deliver or cause to be delivered to the Owner said periodic estimate in
proper form and arithmetically correct. The Contractor shall arrange to deliver each
invoice to the Owner at a scheduled weekly meeting. The Contractor shall include
in such periodic estimate only such materials as are incorporated in the work, except
that it may upon delivery of a bill of sale to the Owner accompanied by receipted
vouchers or other acceptable proof of payment by the Contractor or subcontractor
• for such materials, include the value of materials or equipment delivered at the site
of the work (or at some location agreed to in writing) ready for use, provided that in
the judgment of the Designer they are materials or equipment which meet the
requirements of the Contract, and which the Contractor can adequately protect until
incorporated in the work. The Owner shall retain five (5) percent of such estimated
value as part security for the fulfillment of the Contract by the Contractor and shall
pay to the Contractor the balance not retained as aforesaid after deducting
therefrom all previous payments and all sums to be kept under the provisions of the
Contract.
5. Certificates for Payment
•
(a) The Designer will, within seven days after the receipt of the Contractor's
Application for Payment, either issue to the Owner, a Certificate for Payment, with a
copy to the Contractor, for such amount as the Designer determines is properly due,
or notify the Contractor and Owner in writing of the Designer's reasons for
• withholding certification in whole or in part.
(b) The issuance of a Certificate for Payment will constitute a representation
by the Designer to the Owner, based on the Designer's observations at the site and
the data comprising the Application for Payment, that the Work has progressed to
the point indicated and that, to the best of the Designer's knowledge, information
and belief, quality of the Work is in accordance with the Contract Documents. The
• foregoing representations are subject to an evaluation of the Work for conformance
with the Contract Documents upon Substantial Completion, to results of subsequent
tests and inspections, to minor deviations from the Contract Documents
correctable prior to completion and to specific qualifications expressed by the
Designer. The issuance of a Certificate for Payment will further constitute a
• representation that the Contractor is entitled to payment in the amount certified.
However, the issuance of a Certificate for Payment will not be a representation that
the Designer has (1) made exhaustive or continuous on-site inspections to check
the quality or quantity of the Work, (2) reviewed construction means, methods,
techniques, sequences or procedures, (3) reviewed copies of requisitions received
• 32
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from Subcontractors and material suppliers and other data requested by the owner
to substantiate the Contractor's right to payment or (4) made examination to
ascertain how or for what purpose the Contractor has used money previously paid
on account of the contract Sum.
6. Subcontractor Direct Payment Provisions
Direct Payment to Subcontractors, G.L. c. 30, §39F, provides as follows:
(a) Forthwith after the Contractor receives payment on account of a periodic
estimate, the Contractor shall pay to each subcontractor the amount paid for
the labor performed and the materials furnished by that subcontractor, less
any amount specified in any court proceedings barring such payment and
• also less any amount claimed due from the subcontractor by the Contractor.
(b) Not later than the sixty-fifth (65th) day after each subcontractor
substantially completes its work in accordance with the plans and
specifications, the entire balance due under the subcontract less amounts
retained by the Owner as the estimated cost of completing the incomplete
and unsatisfactory items of work, shall be due the subcontractor; and the
Owner shall pay that amount to the Contractor. The Contractor shall forthwith
pay to the subcontractor the full amount received from the Owner less any
amount specified in any court proceedings barring such payment and also
less any amount claimed due from the subcontractor by the Contractor.
I •
(c) Each payment made by the Contractor to the Owner pursuant to
subparagraphs (a) and (b) of this paragraph for the labor performed and the
materials furnished by a subcontractor shall be made to the Contractor for the
account of that subcontractor; and the Owner shall take reasonable steps to
compel the Contractor to make each such payment to each such
subcontractor. If the Owner has received a demand for direct payment from
a subcontractor for any amount which has already been included in a
payment to the Contractor which is to be included in a payment to the
♦ Contractor for payment to the subcontractor as provided in subparagraphs (a)
and (b), the Owner shall act upon the demand as provided in this section.
(d) If, within seventy (70) days after the subcontractor has substantially
completed the subcontract work, the subcontractor has not received from the
Contractor the balance due under the subcontract including any amount due
for extra labor and materials furnished to the Contractor, less any amount
retained by the Owner as the estimated cost of completing the incomplete
and unsatisfactory items of work, the subcontractor may demand direct
payment of that balance from the Owner. The demand shall be by a sworn
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0
f �
statement delivered to or sent by certified mail to the Owner, and a copy shall
be delivered to or sent by certified mail to the Contractor at the same time.
• The reply shall contain a detailed breakdown of the balance due under the
subcontract work. Any demand made after substantial completion of the
subcontract work shall be valid even if delivered or mailed prior to the
seventieth (70th) day after the subcontractor has substantially completed the
subcontract work. Within ten (10) days after the subcontractor has delivered
or so mailed the demand to the Owner and delivered or so mailed a copy to
the Contractor, the Contractor may reply to the demand. The reply shall be
by a sworn statement delivered to or sent by certified mail to the Owner and a
copy shall be delivered to or sent by certified mail to the subcontractor at the
same time. The reply shall contain a detailed breakdown of the balance due
under the subcontract including any amount due for extra labor and materials
furnished to the Contractor and of the amount due for each claim made by
the Contractor against the subcontractor.
(e) Within fifteen (15) days after receipt of the demand by the Owner but in
no event prior to the seventieth (70th) day after substantial completion of the
subcontract work, the Owner shall make direct payment to the subcontractor
of the balance due under the subcontract including any amount due for extra
labor and materials furnished to the Contractor, less any amount:
(i) retained by the Owner as the estimated cost of completing the
• incomplete or unsatisfactory items of work,
(ii) specified in any court proceedings barring such payment, or
(iii) disputed by the Contractor in the sworn reply;
•
provided, that the Owner shall not deduct from a direct payment any amount
as provided in part (iii) if the reply is not sworn to, or for which the sworn reply
does not contain the detailed breakdown required by subparagraph (d). The
Owner shall make further direct payments to the subcontractor forthwith after
• the removal of the basis for deduction from direct payments made as
provided in parts (i) and (ii) of this subparagraph.
(f) The Owner shall forthwith deposit the disputed amount of a properly filed
direct payment claim as provided in part (iii) of subparagraph (e) in an
interest-bearing joint account in the names of the Contractor and the
subcontractor in a bank in Massachusetts selected by the Owner or agreed
upon by the Contractor and the subcontractor and shall notify the Contractor
and the subcontractor of the date of the deposit and the bank receiving the
deposit. The bank shall pay the amount in the account, including accrued
interest, as provided in an agreement between the Contractor and the
•
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•
•
subcontractor or as determined by decree of a court of competent jurisdiction.
• (g) All direct payments and all deductions from demands for direct payments
deposited in an interest-bearing account or accounts in a bank pursuant to
subparagraph (f) shall be made out of amounts payable to the Contractor at
the time of receipt of a demand for direct payment from a subcontractor and
out of amounts which later become payable to the Contractor and in the order
of receipt of such demands from subcontractors. All direct payments shall
discharge the obligation of the Owner to the Contractor to the extent of such
payment.
(h) The Owner shall deduct from payments to the Contractor amounts which,
together with the deposits in interest-bearing accounts pursuant to
M subparagraph (f), are sufficient to satisfy all unpaid balances of demands for
direct payment received from subcontractors. All such amounts shall be
earmarked for such direct payments, and the subcontractors shall have a
right in such deductions to any claims against such amounts by creditors of
the Contractor.
(i) If the subcontractor does not receive payment as provided in
subparagraph (a) or if the Contractor does not submit a periodic estimate for
the value of the labor or materials performed or furnished by the
subcontractor and the subcontractor does not receive payment for same
when due less the deductions provided for in subparagraph (a), the
subcontractor may demand direct payment by following the procedure in
subparagraph (d) and the Contractor may file a sworn reply as provided in
that same paragraph. A demand made after the first (1 st) day of the month
following that for which the subcontractor performed or furnished the labor
and materials for which the subcontractor seeks payment shall be valid even
• if delivered or mailed prior to the time payment was due on a periodic
estimate form the Contractor. Thereafter the Owner shall proceed as
provided in subparagraph (e), (f), (g) and (h).
(j) Any assignment by the subcontractor of the rights under this section to a
surety company furnishing a bond under the provisions of G.L. c. 149, §29,
` shall be invalid. The assignment and subrogation rights of the surety to
amounts included in a demand for direct payment which are in the
possession of the Owner or which are on deposit pursuant to subparagraph
(f) shall be subordinate to the rights of all subcontractors who are entitled to
be paid under this section and who have not been paid in full.
•
(k) In order to have standing to file a direct payment request pursuant to this
section 5, a subcontractor must meet the requirement of the following
subparagraph (i) if the Project is a building project awarded pursuant to G.L.
c. 49, §44A, or subparagraph (ii) if the Project is a public works project
35
•
f
awarded pursuant to G.L. c.30, §39M.
• (i) "Subcontractor" shall mean a person who files a sub-bid and
receives a subcontract as a result of that filed sub-bid or who is
approved by the Owner in writing as a person performing labor or as a
person performing labor and furnishing materials pursuant to a
Contract with the Contractor on the Project.
7. Payment Liabilities of Contractor
(a) The Contractor shall be responsible to the Owner for all expenses, losses
and damages incurred in consequence of any defect, omission or mistake of
the Contractor its employees or the making good thereof. In case the work
• required by the Contract shall not be completed by the time herein
designated, as extended pursuant to the terms of the Contract, the
Contractor shall pay to the Owner as liquidated damages in full compensation
for such delay the sum specified hereinbefore (see Article 5, paragraph 4).
A (b) Retention of Moneys by the Owner
The Owner may retain any moneys which would otherwise by payable
under the Contract and apply the same, or so much as may be necessary
therefore, to the payment of any expenses, losses, or damages incurred by
the Owner as a direct result of the Contractor's failure to perform its
• obligations hereunder.
(c) No moneys retained under the provisions of this Article shall be held to be
statutory security for the payment of claims filed in accordance with the
provisions of G.L. c. 149, §29, for which security is provided by bond.
8. Acceptance of Final Payment
The acceptance by the Contractor of the last payment due under the Contract
or the execution of the Certificate of Final Inspection, Release, and Acceptance,
shall operate as a release to the Owner and the Designer from all claims and liability
• related to the Contract, except for a claim against the Owner for the amount set forth
by the Contractor in such Certificate.
ARTICLE 8: TERMINATION
•
1. Termination For Cause
If the Contractor shall be adjudged bankrupt, or if he shall make a general
assignment for the benefit of its creditors, or if a receiver shall be appointed of its
• 36
•
property, or if the work to be done under the Contract shall be abandoned, or if the
Contract or any part thereof shall be sublet without the previous written consent of
• the Owner, or if the Contract or any claim thereunder shall be assigned by the
Contractor otherwise than as herein specified, or if at any time the Owner shall be of
the opinion, and shall so state in writing that the conditions herein specified as to the
rate of progress are not being fulfilled, or that the Contractor has substantially
violated any of the provisions of the Contract, the Owner may terminate the Contract
and hold the Contractor and its sureties liable in damages as for a breach of
Contract, or the Owner may notify the Contractor to discontinue all work, or any part
thereof, and thereupon the Contractor shall discontinue all work, or any part thereof,
as the Owner may designate and the Owner may thereupon complete the work, or
any part thereof, and charge its expense of so completing the work or part thereof,
to the Contractor, and the Owner may take possession of and use or cause to be
• used in the completion of the work or part thereof any materials, machinery,
implements, and tools found upon the site of said work. The Owner may, at its
option, require the surety or sureties to complete the Contract. The Owner shall not
be liable for any depreciation, loss, or damage to said materials, machinery,
implements, or tools during said use and the Contractor shall be solely responsible
• for their removal from the Project site after the Owner has no further use for them.
2. Acceleration
If, in the determination of the Owner, after consultation with the Designer, the
Contractor fails to maintain the rate of progress required to complete the project on
• schedule due to causes within the Contractor's control, the Owner may, instead of
notifying the Contractor to discontinue all work or any part thereof, notify it from time
to time to increase the force, equipment, and plant, or any of them, employed on the
whole or any part of the work, stating the amount of increase required; and unless it
shall, within five (5) days, after any such notice, increase its force, equipment, and
plant to the extent required therein, and maintain and employ the same from day to
day until the completion of the work or such part thereof or until the condition as to
the rate of progress shall, in the opinion of the Owner, be fulfilled, the Owner may
employ and direct the labors of such additional force, equipment, and plant as may,
in the opinion of the Owner, be necessary to ensure the completion of the work or
such part thereof within the time herein specified, or at the earliest possible date
• thereafter, and charge the expense thereof to the Contractor. Neither the notice
from the Owner to the Contractor to increase its force, equipment, or plant, nor the
employment of additional force, equipment, or plant by the Owner shall be held to
prevent a subsequent notice from the Owner to Contractor to discontinue work
under provisions of the preceding paragraph, nor shall the Contractor be entitled for
• any costs of acceleration required to comply with this paragraph.
3. Termination Liabilities
All expenses charged under paragraphs (1) and (2) of this Article shall be
37
•
•
deducted and paid by the Owner out of any moneys then due or to become due the
Contractor under the Contract; and in such accounting the Owner shall not be held
• to obtain the lowest figures, by competitive bid or otherwise, for the work of
completing the Contract or any part thereof, or for insuring its proper completion, or
for the additional force, equipment, and plant that may be employed, but all sums
actually paid therefor shall be charged to the Contractor. In case the expenses
charged are less than the sum which would have been payable under the Contract if
• the same had been completed by the Contractor, the Contractor shall be entitled to
receive the difference, and in case such expenses shall exceed the said sum, the
Contractor shall pay the amount of the excess to the Owner, upon completion of the
work.
4. Termination - No Fault
•
In the event that the Contract is terminated by the Owner prior to the
completion of construction and termination is not based on a reason listed in
paragraph 1, the Contractor shall be compensated for its construction services,
including reasonable costs of de-mobilization, calculated on a percent completion
• basis as provided in Article 7, paragraph 3, covering the period of time between the
last periodic payment and the date of termination. The foregoing compensation
shall be considered to fully compensate the Contractor for all of its claims and
expenses and those of its consultants, subcontractors, and suppliers, directly or
indirectly attributable to the termination, and Contractor and its subcontractors shall
not be entitled to lost profits.
•
ARTICLE 9: GUARANTY
If any time during the period of one (1) year from the date of the use and
occupancy of the work to be performed under the Contract any part of the work
shall, in the reasonable determination of the Designer or the Owner require
replacing or repairing due to the fact that it is broken, defective, or otherwise does
not conform to the Contract Documents, the Owner will notify the Contractor to
make the required repairs or replacement. If the Contractor shall neglect to
commence such repairs or replacements to the satisfaction of the Owner within ten
(10) days from the date of giving or mailing such notice, then the Owner may employ
other persons to make the same. The Contractor agrees, upon demand, to pay to
the Owner all amounts which the Owner expends for such repairs or replacements.
During this one (1) year guarantee period any corrective work shall be performed in
accordance with the applicable terms of the Contract. For items of work completed
• after use and occupancy has been taken, the one (1) year guarantee shall
commence at the time the Owner accepts such items. This one (1) year guarantee
shall not limit any express guaranty or warranty provided elsewhere in the Contract.
38
•
•
ARTICLE 10: MISCELLANEOUS LEGAL REQUIREMENTS
• 1. General
The Contractor shall keep itself fully informed of all existing and future state
and national laws and municipal ordinances and regulations in any manner affecting
those engaged or employed in the work, or the materials used or employed in the
• work, or in any way affecting the conduct of the work, and of all such orders and
decrees of bodies or tribunals having any jurisdiction or authority over the Contract
work. All provisions of law that apply to the Contract are made a part of the
Contract, whether incorporated into the Contract or not. If any discrepancy or
inconsistency is discovered in the Contract Documents in relation to any such law,
ordinance, regulation, order, or decree, the Contractor shall forthwith report the
• same to the Owner in writing. It shall cause all its agents and employees to observe
and comply with all such existing and future laws, ordinances, regulations, orders,
and decrees.
2. Corporate Disclosures
•
The Contractor, if a foreign corporation, shall comply with G.L. c. 181, §3 and
5, and c. 30, §39L.
3. Veterans Preference
In the employment of mechanics and apprentices, teamsters, chauffeurs, and
laborers in the construction of public works in the Commonwealth, preference shall
first be given to citizens of the Commonwealth who have been residents of the
Commonwealth for at least six (6) months at the commencement of their
employment and who are veterans, as defined in G.L. c. 4, §7, clause 43, and who
are qualified to perform the work to which the employment relates; and secondly, to
citizens of the Commonwealth generally who have been residents of the
Commonwealth for at least six (6) months at the commencement of their
employment, and if they cannot be obtained in sufficient numbers, then to citizens of
the United States.
4. Prevailing Wage Rates
Contractor shall ensure that all workers are paid not less than the prevailing
minimum wage rate applicable to Salem, Massachusetts. Due to the emergency
nature of the work the Commissioner of Labor and Industries has not established a
• schedule of the prevailing minimum wage rates (the "Schedule") that must be paid
to all workers employed on the Contract. If reserve police officers are employed by
the Contractor, they shall be paid the prevailing wage of regular police officers (see
G.L. c. 149, §34B).
39
•
•
5. Employment Records
a The Contractor and its subcontractors shall keep a true and accurate record
of all mechanics and apprentices, teamsters, chauffeurs, and laborers employed on
the Project, showing the name, address, and occupational classification of each
such employee, and shall furnish to the Owner or to the Commissioner of Labor and
Industries, upon his request, a certified copy of such payroll records, signed by the
employer or its authorized agent under the penalties of perjury. Such records shall
be open to inspection by any authorized representative of the department at any
reasonable time, and as often as may be necessary.
Each such Contractor and subcontractor shall preserve its payroll records for
a period of three (3) years from the date of completion of the Contract.
•
Each Contractor and subcontractor shall furnish to the Clerk of Works within
fifteen (15) days after completion of its portion of the work a statement, executed by
the Contractor or subcontractor in the following form:
STATEMENT OF COMPLIANCE
1, (Name of Signatory Party),
(Title), do hereby state that I pay or supervise the payment of
• the persons employed by
(Contractor of Subcontractor) on the (Building or
Project) and that all mechanics and apprentices, teamsters, chauffeurs, and
laborers employed on said project have been paid in accordance with wages
determined under the provisions of G.L. c. 149, §26 and 27.
Signature:
Title:
The above mentioned copies of payroll records and statement of compliance
shall be available for inspection by any interested party filing a written request to the
Contractor for such inspections (G.L. c.149, §27B).
•
6. Vehicle And Equipment Operators
If the Commissioner of Labor and Industries has established a Schedule of
vo
•
•
wage rates t
g o be paid to the operators of trucks, vehicles, or equipment for this
Project, the Contractor shall be obligated to pay such operators the minimum wage
• rate contained on such Schedule (see G.L. c. 149, §27F).
7. Certificate of Appropriation. (Statutory reference: M.G.L. c.44, §31C).
This paragraph applies to contracts for construction, reconstruction,
alteration, remodeling, repair or demolition of any public building or public work by
any city or town costing more than the amount set forth in M.G.L. c.44, §31 C.
This Contract shall not be deemed to have been made until the Town
accountant or other officer of the city or town having similar duties has
certified thereon that an appropriation in the amount of this Contract is
• available therefor and that an officer or agent of the city, town, or awarding
authority has been authorized to execute said Contract and approve all
requisitions and change orders. No order to the Contractor for a change in or
addition to the work, whether in the form of a drawing, plan, detail, or any
other written instruction, unless it is an order which the Contractor is willing to
perform without any increase in the Contract price, shall be deemed to be
given until the Town accountant, or other officer of the awarding authority
having similar duties, has certified thereon that an appropriation in the
amount of such order is available therefore; but such certificate shall not be
construed as an admission by the awarding authority of its liability to pay for
such work. The certificate of the Town accountant or other officer of the
• awarding authority having similar duties, that an appropriation in the amount
of this Contract, or in the amount of such order, is available shall bar any
defense by the awarding authority on the grounds of insufficient
appropriation.
ARTICLE 11: EQUAL EMPLOYMENT OPPORTUNITY, AFFIRMATIVE ACTION
(Statutory reference: M.G.L. c.151 B; Executive Orders No. 74, No. 116, and No.
246) Subparagraph 11.2.1 applies to 11.2.2 - 11.2.9 and Paragraphs 11.1 and 11.3
- 11.9 apply to all state or state-assisted contracts for public buildings and public
works or for goods and services exceeding the dollar amount set forth in Executive
Order No. 116, as amended. The provisions of this Article 11 are intended to
comply with the Commonwealth's Supplemental Equal Opportunity Anti-
Discrimination and Affirmative Action Program, referred to in Executive Order No.
116 and administered by the Massachusetts Commission Against Discrimination. If
no specific percentage has been inserted in Subparagraph 11.2.3 below, the
• applicable minimum percentage provided for in such Supplemental Program shall
be deemed to have been so inserted.
11.1. Definitions: For purposes of this Contract, "minority" refers to Asian-
Americans, Blacks, Spanish Surnamed Americans, North American Indians, and
• 41
•
•
Cape Verdeans. "Commission" refers to the Massachusetts Commission Against
Discrimination.
11.2. Non-Discrimination and Affirmative Action Requirements. During the
performance of this contract, the Contractor and all of its subcontractors (hereinafter
collectively referred to as the Contractor), for itself, its assignees, and successors in
interest, agree as follows:
11.2.1 In connection with the performance of work under this Contract, the
Contractor shall not discriminate against any employee or applicant for employment
because of race, color, religious creed, national origin, age or sex. The aforesaid
provision shall include, but not be limited to, the following: employment upgrading,
demotion, or transfer; recruitment advertising; recruitment layoff; termination; rates
• of pay or other forms of compensation; conditions or privileges of employment; and
selection for apprenticeship. The Contractor shall post hereafter in conspicuous
places, available for employees and applicants for employment, notices to be
provided by the Commission setting forth the provisions of the Fair Employment
Practices Law of the Commonwealth.
11.2.2 In connection with the performance of work under this Contract, the
Contractor shall undertake in good faith affirmative action measures designed to
eliminate any discriminatory barriers in the terms and conditions of employment on
the grounds of race, color, religious creed, national origin, age or sex, and to
eliminate and remedy any effects of such discrimination in the past. Such
• affirmative action shall entail positive and aggressive measures to ensure equal
opportunity in the areas of hiring, upgrading, demolition or transfer, recruitment,
layoff or termination, rate of compensation, and in-service or apprenticeship training
programs. This affirmative action shall include all action required to guarantee equal
employment opportunity for all persons, regardless of race, color, religious creed,
national origin, age, or sex. A purpose of this provision is to ensure to the fullest
extent possible an adequate supply of skilled tradesmen for this and future
Commonwealth public construction projects.
11.2.3 As part of his obligation of remedial action under the foregoing
Subparagaraph 11.2.2, the Contractor shall maintain on this project a not-less-than
five percent (5%) ratio of minority employee man-hours to total man-hours in each
job category including but not limited to bricklayers, carpenters, cement masons,
electricians, ironworkers, operating engineers, and those "classes of work"
enumerated in M.G.L. c.149, §44F.
11.2.4 In the hiring of minority journeymen, apprentices, trainees and
advanced trainees, the Contractor shall rely on referrals from a multi-employer
affirmative action program approved by the Commission, traditional referral methods
utilized by the construction industry, and referrals from agencies, not more than
three in number at any one time, designated by the Liaison Committee (described in
• 42
•
•
subparagraph 11.2.5 below) or the Commission.
• 11.2.5 At the discretion of the Commission there may be established for the
life of this Contract a body to be known as the Liaison Committee. The Liaison
Committee shall be composed of one representative each from the agency or
agencies administering this project, hereinafter called the administering agency, the
Commission and such other representatives as may be designated by the
Commission in conjunction with the administering agency.
11.2.6 The Contractor (or its agent, if any, designated to be the on-site equal
employment opportunity officer) shall recognize the Liaison Committee, consulting
with the Liaison Committee on all matters related to minority recruitment, referral,
employment and training.
•
11.2.7 The Contractor shall prepare projected manning tables on a quarterly
basis. These shall be broken down into projections, by week, of workers required in
each trade. Copies shall be furnished one week in advance of the commencement
of the period covered, and also when updated, to the Commission and Liaison
• Committee.
11.2.8 Records of employment referral riders, prepared by the Contractor,
shall be made available to the Commission and to the Liaison Committee on
request.
• 11.2.9 The Contractor shall prepare weekly reports in a form approved by
the Commission of hours worked in each trade by each employee, identified as
minority or non-minority. Copies of these shall be provided at the end of each such
week to the Commission and to the Liaison Committee.
• If the Contractor shall use any Subcontractor on any work performed under
this Contract, it shall take affirmative action to negotiate with qualified minority
subcontractors. This affirmative action shall cover both pre-bid and post-bid
periods. It shall include notification to the Office of Minority Business Assistance
(within the Executive Office of Communities and Development) or its designee, while
bids are in preparation, of all products, work or services for which the Contractor
• intends to negotiate bids.
In the employment of journeymen, apprentices, trainees and advanced
trainees, the Contractor shall give preference, first, to citizens of the Commonwealth
who have served in the armed forces of the United States in time of war and have
• been honorably discharged therefrom or released from active duty therein, and who
are qualified to perform the work to which the employment relates, and, secondly, to
citizens of the Commonwealth generally, and if such cannot be obtained in sufficient
numbers, then to citizens of the United States.
0 43
•
A designee of the Commission and a designee of the Liaison Committee
shall each have right of access to the construction site.
•
11.3 Compliance with Requirements. The Contractor shall comply with the
provisions of Executive Order No. 74, as amended by Executive Order No. 166,
dated May 1, 1975, and of M.G.L. c.151B, both of which are herein incorporated by
reference and made a part of this Contract.
•
11.4 Non-Discrimination. The Contractor, in the performance of all work
after award, and prior to completion of the contract work, will not discriminate on
grounds of race, color, religious creed, national origin, age or sex in employment
practices, in the selection or retention of Subcontractors, or in the procurement of
materials and rentals of equipment.
•
11.5 Solicitations for Sub-Contracts, and for the Procurement of Materials
and Equipment. In all solicitations either by competitive bidding or negotiation made
by the Contractor either for work to be performed under a subcontract or for the
procurement of materials or equipment, each potential Subcontractor or supplier
shall be notified in writing by the Contractor of the Contractor's obligations under this
contract relative to non-discrimination and affirmative action.
11.6 Bidders' Certification Requirement. The Contractor hereby certifies that
it shall comply with the minority manpower ratio and specific action steps contained
herein. The Contractor shall be required to obtain for each of its Subcontractors and
• submit to the contracting or administering agency prior to the performance of any
work under the contract a certification by said Subcontractor, regardless of tier, that
it will comply with the minority manpower ratio and a specific affirmative action steps
contained herein. Such certification shall be provided on forms furnished by the
awarding authority or, in the absence thereof, on forms prescribed by the
• Commission.
11.7 Contractor's Certification. The Contractor's certification form must be
signed by all successful low bidder(s) prior to award by the contracting agency.
• 11.8 Compliance-Information. Reports and Sanctions.
11.8.1 The Contractor will provide all information and reports required by the
administering agency or the Commission on instructions issued by either of them
and will permit access to its facilities and any books, records, accounts and other
sources of information which may be determined by the Commission to affect the
• employment of personnel. This provision shall apply only to information pertinent to
the Commonwealth's supplementary affirmative action contract requirements.
Where information required is in the exclusive possession of another who fails or
refuses to furnish this information, the Contractor shall so certify to the administering
agency or the Commission as appropriate and shall set forth what efforts it has
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made to obtain the information.
• 11.8.2 Whenever the administering agency, the Commission, or the Liaison
Committee believes the Contractor or any Subcontractor may not be operating in
compliance with the terms of this Paragraph 11.8, the Commission directly, or
through its designated agent, shall conduct an appropriate investigation, and may
confer with the parties, to determine if such Contractor is operating in compliance
• with the terms of this Paragraph 11.8. If the Commission or its agent finds the
Contractor or any Subcontractor not in compliance, it shall make a preliminary report
on noncompliance, and notify such Contractor into compliance. In the event that
such Contractor fails or refuses to fully perform such steps, the Commission shall
make a final report of non-compliance, and recommend to the administering agency
the imposition of one or more of the sanctions listed below. If, however, the
• Commission believes the Contractor or any Subcontractor has taken or is taking
every possible measure to achieve compliance, it shall not make a final report of
non-compliance. Within fourteen (14) days of the receipt of the recommendations of
the Commission, the administering agency shall move to impose one or more of the
following sanctions, as it may deem appropriate to attain full and effective
enforcement:
(i) The recovery by the administering agency from the Contractor of 1/100 of
1% of the contract award price or$1,000, whichever sum is greater, in the nature of
liquidated damages or, if a Subcontractor is in non-compliance, the recovery by the
administering agency from the Contractor, to be assessed by the Contractor as a
• back charge against the Subcontractor, of 1/10 of 1% of the subcontract price or
$400, whichever sum is greater, in the nature of liquidated damages, for each week
that such party fails or refuses to comply;
(ii) The suspension of any payment or part thereof due under the Contract
• until such time as the Contractor or any Subcontractor is able to demonstrate its
compliance with the terms of the Contract;
(iii) The termination, or cancellation, of the Contract, in whole or in part,
unless the Contractor or any Subcontractor is able to demonstrate within a specified
time its compliance with the terms of the Contract;
(iv) The denial to the Contractor or any Subcontractor of the right to
participate in any future contracts awarded by the administering agency for a period
of up to three years.
If at any time after the imposition of one or more of the above sanctions a
• Contractor is able to demonstrate that it is in compliance with this paragraph 11.8, it
may request the administering agency, in consultation with the Commission, to
suspend the sanctions conditionally, pending a final determination by the
Commission as to whether the Contractor is in compliance. Upon final
determination of the Commission, the administering agency, based on the
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recommendation of the Commission, shall either lift the sanctions or reimpose them.
• Sanctions enumerated under Subparagraph 11.8.2 of this Paragraph 11.8
shall not be imposed by the administering agency except after an adjudicatory
proceeding, as that term is used in M.G.L. c.30A, has been conducted. No
investigation by the Commission or its agent shall be initiated without prior notice to
the Contractor.
11.9 Severability. The provisions of this Article 11 are severable, and if any
of these provisions shall be held unconstitutional by any court of competent
jurisdiction, the decision of such court shall not affect or impair any of the remaining
provisions.
11.10 Equal Employment Opportunity for the Handicapped. The Contractor
shall comply with the provisions of Executive Order No. 246, relating to
discrimination against, and equal employment opportunity for, the handicapped,
which is herein incorporated by reference and made a part of this Contract. In
connection with the performance of work under this Contract, the Contractor,
Subcontractors and suppliers of goods and services shall not discriminate against
the handicapped. Furthermore, Contractors, Subcontractors and suppliers of goods
and services must give written notice of their commitments under this Paragraph
11.10 to any labor union, association or brotherhood with which they have a
collective bargaining contract or other agreement, and must give such notice to
handicap contractors and to handicapped contractor associations. A copy of such
notice must be furnished to the awarding authority at the time of the signing of the
Contract.
11.11 Suspension of Payments.
11.11.1 If the awarding authority determines after investigation that the
Contractor or any Subcontractor is not in compliance with the terms of Article 11, it
may suspend any payment or portion thereof due under the Contract until the
Contractor demonstrates compliance with the terms of Article 11.
' 11.11.2 Payment shall not be suspended if the awarding authority finds that
the Contractor made his best efforts to comply with Article 11, or that some other
justifiable reason exists for waiving the provisions of Article 11 in whole or in part.
11.11.3 Payment maybe suspended only after the Contractor and another
interested party shall have been given the opportunity to present evidence in
support of its position at an informal hearing held by the awarding authority and the
awarding authority has concluded upon review of all the evidence that such penalty
is justified.
11.11.4 This temporary suspension of payments by the awarding authority is
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separate from the sanctions set forth in Paragraph 11.8 above, which are
determined by the Commission and recommended to the awarding authority.
•
ARTICLE 11A: SALEM AREA RESIDENTS PUBLIC CONSTRUCTION
EMPLOYMENT ORDINANCE
The contractor and its subcontractors shall employ Salem and Salem area
• residents on the Project, in accordance with Article XXXIV of the City ordinances,
entitled "Salem Area Residents Public Construction Employment Ordinance'; a copy
of which is incorporated into this agreement.
ARTICLE 12: CONTRACTOR'S ACCOUNTING REQUIREMENTS
• 1. The words defined herein shall have the meaning stated below whenever they
appear in this Article.
(a) "Contractor' means any person, corporation, partnership, joint venture,
sole proprietorship, or other entity awarded the Contract.
I •
(b) "Contract" means any Contract awarded or executed pursuant to G.L. c.
30, §39M, or G.L. c. 149, §44 A- H, which is for an amount greater than one
hundred thousand dollars ($100,000).
• (c) "Records" means books of original entry, accounts, checks, bank
statements, and all other banking documents, correspondence, memoranda,
invoices, computer printouts, tapes, discs, papers, and other documents or
transcribed information of any type, whether expressed in ordinary or
machine language.
• (d) "Independent Certified Public Accountant" means a person duly registered
in good standing and entitled to practice as a certified public accountant
under the laws of the place of his/her residence or principal office and who is
in fact independent.
. (e) "Audit," when used in regard to financial statements, means an
examination of records by an independent certified public accountant in
accordance with generally accepted accounting principles and auditing
standards for the purpose of expressing a CERTIFIED opinion thereon, or, in
the alternative, a qualified opinion or a declination to express an opinion for
stated reasons.
•
(f) "Accountant's Report," when used in regard to financial statements, means
a document in which an independent certified public accountant indicates the
scope of the audit which s/he has made and sets forth his/her opinion
regarding the financial statements taken as a whole with a listing of noted
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exceptions and qualifications, or an assertion to the effect that an overall
opinion cannot be expressed. When an overall opinion cannot be expressed
• the reason therefore shall be stated. An accountant's report shall include a
signed statement by the responsible corporate officer attesting that
management has fully disclosed all material facts to the independent certified
public accountant, and that the audited financial statement is a true and
complete statement of the financial condition of the Contractor.
• (g) "Management" means the chief executive officers, partners, principals, or
other person or persons primarily responsible for the financial and operational
policies and practices of the Contractor.
(h) Accounting terms, unless otherwise defined herein, shall have a meaning
• in accordance with generally accepted accounting principles and auditing
standards.
2. The Contractor shall make and keep for at least six (6) years after final payment
books, records, and accounts which in reasonable detail accurately and fairly reflect
• the transactions and dispositions of the Contractor.
3. Until the expiration of six (6) years after final payment, the Inspector General and
the Owner shall have the right to examine any books, documents, papers, or
records of the Contractor or its subcontractors that directly pertain to and involve
transactions relating to the Contractor or its subcontractors.
•
4. The Contractor shall describe any change in the method of maintaining records or
recording transactions which materially affect any statements filed with the Owner,
including in its description the date of the change and reasons therefor, and shall
accompany said description with a letter from the Contractor's independent certified
• public accountant approving or otherwise commenting on the changes.
5. The Contractor shall file a statement of management on internal accounting
controls as set forth in paragraph (c) below prior to the execution of the Contract.
6. The Contractor shall file prior to the execution of the Contract an audited financial
• statement for the most recent completed fiscal year as set forth in paragraph (d)
below and will continue to file such statement annually during the term of the
Contract.
7. The Contractor shall file with the Owner a statement of management as to
• whether the system of internal accounting controls of the Contractor and its
subsidiaries reasonably assures that:
(a) transactions are executed in accordance with management's general and
specific authorization;
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(b) transactions are recorded as necessary:
•
(i)to permit preparation of financial statements in conformity with
generally accepted accounting principles, and
(ii) to maintain accountability for assets;
• (c) access to assets is permitted only in accordance with management's
general or specific authorization; and
(d) the recorded accountability for assets is compared with the existing assets
at reasonable intervals and appropriate action was taken with respect to any
• difference.
8. The Contractor shall also file with the Owner a statement prepared and signed by
an independent certified public accountant, stating that s/he has examined the
statement of management on internal accounting controls, and expressing an
• opinion as to:
(a) whether the representations of management in response to this paragraph
and paragraph (b) above are consistent with the results of management's
evaluation of the system of internal accounting controls; and
• (b) whether such representations of management are, in addition, reasonable
with respect to transactions and assets in amounts which would be material
when measured in relation to the applicant's financial statement.
•
ARTICLE 13: INSURANCE REQUIREMENTS
1.01 GENERAL REQUIREMENTS
A. Include these insurance requirements as part of the GENERAL
CONDITIONS of the Contract.
• B. Examine the GENERAL CONDITIONS for additional requirements
which affect this Section whether or not specifically mentioned in this
Section.
C. Provide all insurance coverage specified. Coverage shall apply to all work
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under the Contract.
• 1.02 INSURANCE REQUIREMENTS
A. The General Contractor shall purchase and maintain such insurance as
will protect him from claims under worker's compensation acts and from
claims for damages because of bodily injury, including death, and property
• damage which might arise from and during operations under this Contract,
whether such operations be by himself or by a Subcontractor or anyone
directly or indirectly employed by either of them.
B. Contractor shall not commence work under this Contract until he has
obtained all insurance required herein nor until such insurance has been
• approved by the Owner. Contractor shall not allow any Subcontractor to
commence work until the insurance required of the Subcontractor has been
so obtained and approved.
C. Subcontracts: Contractor shall either (1) require each Subcontractor to
• procure and to maintain during the life of his Subcontract, Subcontractor's
General Liability and Property Damage Insurance of same type and in same
manner as specified herein, or (2) insure activities of his Subcontractors in his
own policy.
D. All insurance required by this Document shall be provided by a Best "A.
• VI I I" - rated company, or companies, authorized to do business in the
Commonwealth of Massachusetts and satisfactory to the Owner and shall be
written for not less than any limits of liability specified herein, or required by
law, whichever is greater.
• E. Certificates: Certificates of Insurance acceptable to the Owner shall be
submitted in triplicate to the Owner simultaneously with the execution of the
Contract. Certificates shall indicate that broad form Contractual Liability
coverage is in force, as well as deletions of the XCU exclusions. Certificates
shall contain a provision that the insurance company will notify the Owner by
registered mail at least sixty (60) calendar days in advance of any
cancellation, non-renewal, change or expiration of the policies. Certificates
shall include description of coverage, effective dates and expiration dates of
policies and shall clearly indicate all exclusions ((other than standard policy
form exclusions contained in the basic policy) which will be added to the
policies provided.
F. Deductibles: In the event of paid claims, Contractor shall bear costs of
any amounts deductible.
G. Waiver: Subject to the consent of their respective insurers, the Owner
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and the Contractor waive all rights against each other and against the
subcontractors, consultants, agents and employees of the other, for damages
• to the Project covered by any property insurance.
H. The Owner shall be named as an additional insured under all policies.
I. Before any blasting is done, Contractor shall present evidence that blasting
damage is included in his insurance coverage.
1.03 COVERAGE AND LIMITS
A. Workers' Compensation Insurance:
• The Contractor shall maintain and cause all subcontractors and lower tier
contractors to maintain Workers Compensation and Employers Liability
Insurance in accordance with the law and Regulations of the Commonwealth
of Massachusetts. The limits of liability provided shall be as follows:
Coverage A: Statutory
Coverage B: $100,000/$500,000/$100,000
B. Contractor's Liability Insurance:
The Contractor shall purchase and maintain and cause all subcontractors
• and lower tier contractors to maintain throughout the term of the Work
Commercial General Liability Insurance with all applicable broad form
endorsements. Such insurance shall be on the 1986 standard Insurance
Service Office occurrence coverage form (or any later amendments or
revisions thereto). Limits of liability to be provided shall be as follows:
•
INSURANCE REQUIREMENTS
Bodily Injury and Property Damages $1,000,000
Personal Injury and Advertising Injury $1,000,000
General Aggregate $2,000,000
Products/Completed Operations Aggregate $2,000,000
Medical Payments $ 10,000
• Coverage shall specifically include blanket contractual liability covering
Contractor's indemnity obligations as contained in this Document.
C. Business Automobile Liability:
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The Contractor shall maintain and cause all subcontractors and lower tier
contractors to maintain business automobile liability insurance covering all
• owned, non-owned, leased, rented and hired automobiles (symbol 1). The
limits of liability shall be as follows:
Bodily Injury and Property Damage: $1,000,000 per occurrence
• Automobile physical damage coverage shall be at the option of the
Contractor, all subcontractors and lower tier contractors. The Owner shall not
be liable for physical loss or damage to any owned, non-owned, leased,
rented or hired automobile.
D. Umbrella or Excess Liability:
•
Umbrella or Excess Liability shall be provided in excess of the primary limits
of liability required above. Coverage shall be at least as broad as provided in
the primary coverage required. The limits of liability to be provided shall be
as follows:
• $5,000,000 per occurrence Bodily Injury and Property Damage
$5,000,000 per occurrence Personal Injury and Advertising Injury
$5,000,000 General Aggregate
$5,000,000 Products and Completed Operations Aggregate
•
E. Owner's Insurance:
The Owner will provide Builder's Risk Insurance for the existing buildings and
the additions to the Bates School as part of the City of Salem's Master
• Insurance Program. Such coverage will include all building additions and
materials used for the Work while at the construction site or on route to the
construction site. The amount of Builder's Risk Coverage will equal the total
cost of the construction Project.
ARTICLE 14: INDEMNIFICATION
•
The Contractor shall take all responsibility for the work and take all
precautions for preventing injuries to persons and property in or about the work and
shall bear all losses resulting to it on account of the amount or character of the work.
The Contractor shall pay or cause payment to be made for all labor performed or
• furnished and for all materials used or employed in carrying out the Contract. The
Contractor shall assume the defense of, and indemnify and save harmless, the
Designer, the Owner, and their officers and agents from all claims relating to labor
performed or furnished and materials used or employed for the work; to inventions,
patents and patent rights used in and in doing the work unless such patent
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infringement is due to a product or process specified by the Owner; to injuries to any
person or corporation received or sustained by or from the Contractor and its
• employees, and subcontractors and employees, in doing the work, or in
consequence of any improper materials, implements or labor used or employed
therein; and to any act, omission or neglect of the Contractor and its employees
therein.
• ARTICLE 15: PERFORMANCE AND PAYMENT BONDS
The Contractor shall provide the Owner with a performance bond and a labor
and materials or payment bond executed by a surety company licensed by the
Division of Insurance, in the forms attached and identified as Attachments A and B.
• Each such bond shall be in the amount of the Contract price.
ARTICLE 16: SIGNATURES
IN WITNESS WHEREOF, the Government Owner and the Contractor have
caused the Contract to be executed by their respective authorized officers.
OWNNEER( - CITY OF SALEM CONTRACTOR
�J
COSTQ D44MXLING CO. , INC.
• Stanley J. Usovic_, Jr. by:
Mayor of Salem DANIEL T. CO LLO, PRESIDENT
/� position and title
A(bl., ,
ert C. Hill Jr.,
• Purchasing Agent
I certify that an appropriation in the amount of$231,000.00 has been made and is
available for compensation to the Contractor for the work described in this Contract.
' •
By:
Bruce M. Guy
Title: Finance Director, Ciy9alem
•
Approved as to form and manner
in execution only.
• 53
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•
By:
John D. Keenan, Esq.
• Title: Assistant City Solicitor
• Date: 9/15/00 Date:
If the Contractor is a corporation, complete the following certification:
• At a duly authorized meeting of the Board of Directors of the
COSTELLO DISMANTLING CO. . INC. (Name of the Corporation) held on
OCTOBER 12, 199gDate), at which all the Directors were present or waived notice,
it was voted that, DANIEL T. cosTELLffiame),
• PRESIDENT (Officer) of this company, is authorized to execute
Contracts and bonds in the name and behalf of said company, and affix its
corporate seal thereto, and such execution of any Contract or obligation in this
company's name on its behalf by such PRESIDENT (Officer) of the
company, shall be valid and binding upon this company.
• 1 hereby certify that I am the Clerk of the COSTELLO
DISMANTLIN . -0. . TNe - (Name of the Corporation), that
DANIEL T. COSTELLO (Name) is the duly elected
PRESIDENT (Officer) of said company, and that the above vote has not been,
amended or rescinded and remains in full force and effect as of the date of the
Contract.
A true copy,
Attes :
Clerk)
•
Place of Business: 2 ROCKY GUTTER ST. MIDDLEBORO, MA 02346
Corporate Seal:
• sv
•
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STATE TAX
Pursuant to G.L. c. 62C, §49A, I certify under the penalties of perjury that the
Contractor, to my best knowledge and belief, has filed all state tax returns and paid
all state taxes required under law.
• 04-2864361 COSTELLO DISMANTLING CO. , INC.
Social Security Number Signature of Individual or
or Federal Identification Number Corporate Name
• By:
orporate Officer
(if applicable)
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ATTACHMENTS
• A Payment Bond
B Performance Bond
C Department of Labor and Industries Prevailing Wage Rates
• D Salem Noise Control Ordinance for Construction and Blasting
E Salem Area Residents Public construction Employment Ordinance
•
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EXHIBIT "J"
•
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•
780 CMR: STATE BOARD OF BUILDING REGULATIONS AND STANDARDS
ADMINISTRATION
780 CMR 120.0 CERTIFICATE OF 120.5 Posting structures:
• OCCUPANCY 120.5.1 Posted use and occupancy: A suitably
120.1 General: New buildings and structures:A designed placard approved by the building official
building or structure hereafter shall not be used or shall be posted by the owner on all floors of every
occupied in whole or in part until the certificate of building and structure and part thereof designed
use and occupancy shall have been issued by the for high hazard, storage, mercantile, factory and
building commissioner or inspector of buildings or, industrial or business use(use groups H,S,M,F
when applicable,the state inspector. The certificate and B) as defined in 780 CMR 3. Said placard
' . shall not be issued until all the work has been shall be securely fastened to the building or
completed in accordance with the provisions of the structure in a readily visible place, stating: the
approved permits and of the applicable codes for use group, the fire grading, the live load and the
which a permit is required, except as provided in occupancyload.
780 CMR 120.3.
120.5.2 Posted occupancy load: A suitably
120.2 Buildings or structures hereafter altered: designed placard approved by the building official
• A building or structure;in whole or in part,altered shall be posted by the owner in every room where
to change from one use group to another, to a practicable of every building and structure and
different use within the same use group; the fire part thereof designed for use as a place of public
grading; the maximum live load capacity; the assembly or as an institutional building for
occupancy load capacity shall not be occupied or harboring people for penal, correctional,
used until the certificate shall have been issued educational,medical or other care or treatment,or
certifying that the work has been completed in as residential buildings used for hotels, lodging
accordance with the provisions of the approved houses, boarding houses, dormitory buildings,
•
permits and of the applicable codes for which a multiple family dwellings (use groups A, I, R-1
permit is required. Any use or occupancy, which and R-2). Said placard shall designate the
was not discontinued during the work of alteration, maximum occupancy load.
shall be discontinued within 30 days after the 120.5.3 Replacement of posted signs: All
completion of the alteration unless the required posting signs shall be famished by the owner and
certificate is issued. shall be of permanent design; they shall not be
removed or defaced, and if lost, removed or
1203 Temporary occupancy: Upon the request of defaced,shall be immediately replaced.
the holder of a permit, a temporary certificate of
occupancy may be issued before the completion of 120.5.4 Periodic inspection for posting: The
the entire work covered by the permit,provided that building official may periodically inspect all
such portion or portions shall be occupied safely existing buildings and structures except one and
prior to full completion of the building or structure two family dwellings for compliance with
without endangering life or public welfare. Any 780 CMR in respect to posting;or he may accept
occupancy permitted to continue during the work
the report of such inspections from a qualified
shall be discontinued within 30 days after registered engineer or architect or others certified
completion of the work unless a certificate of by the BBRS; and such inspections and reports
occupancy is issued by the building official. shall specify any violation of the requirements of
780 CMR in respect to the posting of floor load,
120.4 Contents of certificate: When a building or fire grading,occupancy load and use group of the
• structure is entitled thereto, the building official building or structure.
shall issue a certificate of occupancy within ten days
after written application. Upon completion of the 780 CMR 121.0 UNSAFE STRUCTURES
.final inspection in accordance with 780 CMR 115.5 121.1 General: The provisions of 780 CMR 121.0
and correction of the violations and discrepancies, are established by M.G.L. c. 143, §§6, 7, 8, 9 and
and compliance with 780 CMR 903.4,the certificate 10.
of occupancy shall be issued. The certificate of
occupancy shall specify the following. 121.2 Inspection: The building official
1. The edition of the code under which the immediately upon being informed by report or
permit was issued. otherwise that a building or other stntcture or
2. The use group and occupancy,in accordance anything attached thereto or connected therewith is
with the provisions of 780 CMR 3. dangerous to life or limb or that any building in that
3. The type of construction as defined in city or town is unused, uninhabited or abandoned,
780 CMR 6. and open to the weather,shall inspect the same;and
• 4. The occupant load per floor. he shall forthwith in writing notify the owner to
5. Any special stipulations and conditions of the remove it or make it safe if it appears to him to be
building pemtit. dangerous, or to make it secure if it is unused,
uninhabited or abandoned and open to the weather.
2/7/97 (Effective 2/28/97) 780 CMR-Sixth Edition 27
a
780 CMR: STATE BOARD OF BUILDING REGULATIONS AND STANDARDS
THE MASSACHUSETTS STATE BUILDING CODE
If it appears that such building or structure would be case of such demolition, the said building official
especially unsafe in case of fire, it shall be deemed shall cause such lot to be leveled to conform with
dangerous within the meaning hereof, and the adjacent grades by a inorganic fill. The costs and
building official may affix in a conspicuous place charges incurred shall constitute a lien upon the land
upon its exterior walls a notice of its dangerous upon which the structure is located, and shall be
condition, which shall not be removed or defaced enforced in an action of contract; and such owner
without authority from him. shall,for every day's continuance of such refusal or
neglect after being so notified,be punished by a fine
121.3 Removal or making structure safe: Any in accordance with 780 CMR 118.4. The provisions
person so notified shall be allowed until 12:00 noon of M.G.L. c. 139, § 3e, paragraph two, relative to
of the day following the service of the notice in liens for such debt and the collection of claims for
which to begin to remove such building or structure such debt shall apply to any debt referred to in this
or make it safe, or to make it secure, and he shall section, except that the said building official shall
employ sufficient labor speedily to make it safe or act hereunder in place of the mayor or board of
remove it or to make it secure; but if the public selectmen. During the time such order is in effect,
safety so requires and if the mayor or selectmen so it shall be unlawful to use or occupy such structure
order, the building official may immediately enter or any portion thereof for any purpose.
upon the premises with the necessary workmen and
assistants and cause such unsafe structure to be made 121.6 Remedy of person ordered to remove a
safe or demolished without delay and a proper fence dangerous structure or make it safe:
put up for the protection of passersby,or to be made Notwithstanding the provisions of 780 CMR 122,an
secure. owner, aggrieved by such order may have the
remedy prescribed by M.G.L. c. 139, § 2: provided
121.4 Failure to remove or make structure safe, that any provision of M.G.L.c. 139, §2 shall not be
survey board,survey report: If an owner of such construed so as to hind r WU orrevent the
unsafe structure refuses or neglects to comply with ut mg official from acting and proceeding under
_
the requirements of such notice within the specified 121; and provided, further, that this
time limit, and such structure is not made safe or section shall not prevent the city or town from
taken down as ordered therein, a careful survey of recovering the forfeiture provided in said 780 CMR
• the premises shall be made by a board consisting;in 121.5 from the date of the service of the original
a city, of a city engineer, the head of the fire notice,unless the order is annulled by the jury.
department, as such term is defined in M.G.L.
c. 148, § 1, and one disinterested person to be 780 C11IR 122.0 BOARD OF APPEAIS
appointed by the building official;and, in a town of 122.1 State Building Code Appeals Board:
a surveyor,the head of the fire department and one Except for actions taken pursuant to 780 CtVfR
disinterested person to be appointed by the building 121.0, whoever is aggrieved by an interpretation,
S official. In the absence of any of the above officers order,requirement,direction or failure to act under
or individuals, the mayor or selectmen shall 780 CMR by any agency or official of the city,town
designate one or more officers or other suitable or region, or agency or official of the State charged
persons in place of the officers so named as with the administration or enforcement of 780 CMR
members of said board. A written report of such or any of its rules or regulations, excepting any
survey shall be made, and a copy thereof served on specialized codes, may appeal directly to the State
such owner. Building Code Appeals Board as provided in
• 780 CMR 122.0.
121.5 Removal of dangerous or abandoned whoever is aggrieved by an interpretation,order,
structures: If such survey report as outlined in requirement, direction or failure to act under
780 CMR 121.4 declares such structure to be 780 CMR by any agency or official of a city, town
dangerous or to be unused, uninhabited or or region charged with the administration or
abandoned, and open to the weather, and if the enforcement of 780 CMR,excepting any specialized
owner continues such refusal or neglect,the building codes, may appeal directly to the State Building
• official shall cause it to be made safe or taken down Code Appeals Board or may appeal first to a local or
or to be made secure; and, if the public safety so regional building code appeals board and if
requires, said building official may at once enter the aggrieved thereby he may then appeal to the State
structure,the land on which it stands or the abutting Building Code Appeals Board as provided in
land or buildings, with such assistance as he may 780 CMR 122.0.
require, and secure the same; and may remove and In the event an appeal is taken directly to the State
evict, under the pertinent provisions of M.G.L. Building Code Appeals Board from an
c.239,or otherwise,any tenant or occupant thereof, interpretation, order, requirement or direction, said
and may erect such protection for the public by appeal shall be filed as specified in 780 CMR
proper fence or otherwise as may be necessary,and 1223.1 with the State Building Code Appeals Board
for this purpose may close a public highway. In the not later than 45 days after the service of notice
28 780 CMR_Sixth Edition 2/7/97 (Effective 2/28/97)
40
•
•
143 § 3Y PUBLIC SAFETY
C.I.S. Municipal Corporations§§ 672 to 678.
• C.J.S.Towns§§ 61 to 70.
Notes of Decisions
In general I ty, although decisions of local authorities re-
garding implementation and enforcement of
state building code may be independently over-
1. In general ridden by commissioner. Op.Atty.Gen.,Dec.2,
• Local building inspectors are not subject to 1974, p. 78.
direct control of commissioner of public safe
§§ 4, 5. Repealed by St.1972, c. 802, § 22
Historical and Statutory Notes
St.1972, c. 802, § 22, repealing these sec- St.1913, c.655, § 2.
• tions,was approved July 19, 1972,and by§ 77 Section 5, which related to structures
made effective Jan. 1, 1975. deemed public nuisances, was derived from:
Section 4,which related to building limits in St.1870, c. 375, § 2.
towns, was derived from: P,S.1882,c. 104, § 3.
St.1870, c. 375, §§ 1, 3. St.1894, c. 481, § 13.
P.S.1882, c. 104, § 2. R.L.1902, c. 104, § 3.
St.1894, c. 481, § 12. St.1913, c. 655, § 3.
R.L.1902, c. 104, § 2.
• § 6. Local inspector; duties
The local inspector, immediately upon being informed by report or other-
wise that a building or other structure or anything attached thereto or
connected therewith in that city or town is dangerous to life or limb or that
any building in that city or town is unused, uninhabited or abandoned, and
• open to the weather, shall inspect the same; and he shall forthwith in writing
notify the owner, lessee or mortgagee in possession to remove it or make it
safe if it appears to him to be dangerous, or to make it secure if it is unused,
uninhabited or abandoned and open to the weather. If it appears that such
structure would be especially unsafe in case of fire, it shall be deemed
dangerous within the meaning hereof, and the local inspector may affix in a
conspicuous place upon its exterior walls a notice of its dangerous condition,
• which shall not be removed or defaced without authority from him.
Amended by St.1946, c. 363, § 4; St.1949, c. 541, § 1; St.1957, c. 214, § 1; St.1972, c.
802, § 23.
Historical and Statutory Notes
St.1878, c. 47, § 1. St.1899,c. 139, § I. St.1913, c. 655, § 4.
P.S.1882, c. 104, § 4. R.L.1902, c. 104, § 4. St.1918, c. 291, § 23.
S1.1894, c. 481, § 14. St.1908, c. 221, § I.
St.1946, c. 363, § 4, approved May 22, 1946, six following sections or has accepted corre-
in the first sentence,substituted"wherein there spending provisions of earlier laws,". 1949
is in force a building code, so called, estab- St.1949, c. 541, § 1, approved July 13,
respondlished ing provisions of earlier law orof section three er cor-estab- in the first sentence, substituted 'lessee or
lished by or under authority of any other pro- mortgagee in possession" for "agent or any
• vision of law' for "which accepts this and the person having an interest therein'.
138
•
BUILDING INSPECTION, ETC. 143 §7 j
St.1957, c. 214, § t, approved March 19, being informed by report or otherwise that a f
1957,in the first sentence,inserted"or that any building or other structure or anything at.
building in that city or town is unused, unin- tached to or connected therewith in that city or
habited or abandoned, and open to the weath- town is dangerous to life or limb or that any
er" and added "if it appears to him to be building in that city or town is unused, unin-
dangerous, or to make it secure if it is unused, habited or abandoned, and open to the weath-
• - uninhabited or abandoned, and open to the er, shall inspect the same; and he shall forth-
weather . with in writing notify the owner, lessee or `l
St.1972,c. 802,§ 23,approved July 19, 1972, mortgagee in possession to remove it or make`
and by § 77 made effective Jan. 1, 1975, re- it safe if it appears to him to be dangerous, or
wrote the section, which prior thereto read: to make it secure if it is unused, uninhabited
"In a city or town wherein there is in force a or abandoned, and open to the weather. If it
building code, so called, established under au- appears that such structure would be specially
thority of section three or corresponding provi- unsafe in case of fire, it shall be deemed dan-
• sions of earlier law or established by or under gerous within the meaning hereof, and the
authority of any other provision of law the inspector of buildings may affix in a conspic-
superintendent of public buildings or such oth. uous place upon its exterior walls a notice of i.
er person as the mayor of such city or the its dangerous condition, which shall not be
selectmen of such town may designate shall be removed or defaced without authority from `
inspector of buildings, and, immediately upon him."
i
Cross References
• Conveyance of real estate to evade nuisance provisions, penalty, we c. 111, § 1270.
Hindering inspectors in the performance of their duties, we§ 50 of this chapter.
Non-residents, service of notice upon, we § 11 of this chapter.
State board of building regulations and standards, we§ 93 et seq. of this chapter.
State inspectors, removal or repair of dangerous buildings by, see § 14 of this chapter.
t Library References
-i Health and Environment o=7(3). C.J.S. Health and Environment § 13.
i. Municipal Corporations 4+192. C.J.S. Municipal Corporations§§ 672 to 678.
Towns e-31. C.J.S. Towns§§ 79, 81, 135. -i
ii WESTLAW Topic Nos. 199, 268, 381.
f. Notes of Decisions
tIn general 1 that costs incurred should constitute a lien and
that owner should,for every day's continuance
• of such neglect after being so notified, forfeit
1. In general to city not less than$10 nor more than$50,the
Under c. 143,§§ 6,8 to 10 authorizing build- forfeiture, or the liability to it, cannot be re-
ing inspector to notify owner of dangerous garded either as an encumbrance within statu-
condition of building and that if owner contin- tory quitclaim covenant or as giving rise to a
Iles such neglect building inspector should breach of a statutory warranty. Silverblatt v.
cause it to
be made safe or taken down and Livadas(1960) 164 N.E.2d 875, 340 Mass.474.
§ 7. Removal or making structure safe; putting up fence
Any person so notified shall be allowed until twelve o'clock noon of the day
following the service of the notice in which to begin to remove such structure
or make it safe, or to make it secure, and he shall employ sufficient labor
speedily to make it safe or remove it or to make it secure; but if the public s
safety so requires and if the aldermen or selectmen so order, the inspector of
• buildings may immediately enter upon the premises with the necessary
workmen and assistants and cause such unsafe structure to be made safe or
taken down without delay, and a proper fence put up for the protection of
passers-by, or to be made secure. If such a building or structure is taken
139
•
`I
t iWy:
y, j'
.e 3:;';v
i
•
•
•
143 §7 PUBLIC SAFETY
down or removed, the lot shall be levelled to uniform grade by a proper
• sanitary fill to cover any cellar or foundation hole and any rubble not
removed.
Amended by St.1949, c. 156, § 2; St.1957, c. 214, § 2.
Historical and Statutory Notes
St.1878, c. 47, § 2. St.1894, c. 481, §§ 15, 49. St.1913, c.655, § S.
• , P.S.1882, c. 104, § 5. St.1899, c. 139, § 2.
St.1888, c. 399, § 3. R.L.1902, c. 104, § 5.
St.1949, c. 156, § 2, approved April 8, 1949, itsecure," and "or to ake to be made secure'it secure" and
added the second sentence.
St.1957, c. 214, § 2, approved March 19,
1957,in the first sentence,inserted"or to make
. Cross References
Conveyance of real estate to evade nuisance provisions, penalty, see c. 111, § 1270.
Nuisance,burnt or dangerous building as, see c. 139, § I. see 14 of this chapter.
State inspectors, removal or repair of dangerous buildings by, §
Library References
Health and Environment X32. C.J.S. Health and Environment §§ 28 to 36,
• WESTLAW Topic No. 199. 52.
Notes of Decisions
In general i owner's right to repair it, as previously autho-
Fire escapes 2 rized. Burofsky v.Turner(1931) 175 N.E. 90,
274 Mass. 574.
• 2. Fire escapes
1. In general .
Municipal building superintendent's letter The city of Lynn has the authority to require
ngs
extending time for demolishing�
i`hing buil ding, un-did eat inethescaty.tton Op.AttyTGen.,April 15,of fie escapes on1d943�1p'39.
der G.L.1921, c. 143. §§
§ 8. Failure to remove or make structure safe; survey board; survey;
report
If an owner, lessee or mortgagee in possession of such unsafe structure z
refuses or neglects to comply with the requirements of such notice within the
time limited, and such structure is not made safe or taken down as therein
ordered, or made secure, a careful survey of the premises shall be made by a
• board consisting in a city of the city engineer,the head of the fire department,
as such term is defined in section one of chapter one hundred and forty-eight,
and one disinterested person to be appointed by the loi nd inspector, and in a
town of a surveyor, the head of the fire department and one disinterested
person to be appointed by the local inspector. If there is no city engineer In
such city or no head of the fire department in such city or town, the mayor in
• Or
selectmen shall designate one or more officers or other suitable persons ort of
b
place of the officers so named as members of said board. A written rep
•
•
BUILDING INSPECTION, ETC. 143 §9
such survey shall be made, and a copy thereof served on such owner, lessee or
mortgagee in possession.
Amended by St.1945, c. 697, § 1; St.1949, c. 541, § 2; St.1957, c. 214, § 3; St.1972, c.
802, § 24.
•
111storlcal and Statutory Notes
St.1878, c. 47, § 3. SC1894, c. 481, §§ 16, 50. St.1913, c. 655, § 6.
P.S.1882, c. 104, § 6. St.1899, c. 139, § 3.
St.1888, c. 399, § 4. R.L.1902, c. 104, § 6.
1 St.1945, c. 697, § 1, an emergency act, ap- "lessee or mortgagee in possession" for "agent
proved July 24, 1945, substituted "head" for or person interested in". j
"chief engineer"throughout the section and,in St.1957, c. 214, § 3, approved March 19,
the first sentence, inserted ", as such term is 1957,in the first sentence,inserted"or to make
defined in section one of chapter one hundred it secure;'.
and forty-eight;'. SC1972,c. 802, § 24,approved July 19, 1972,
and by§ 77 made effective Jan. 1, 1975,in the
St.1949, c. 541, § 2, approved July 13, 1949, first sentence, substituted "local inspector" for
in the first and third sentences, substituted "inspector of buildings' in two places.
• Cross References
Conveyance of real estate to evade nuisance provisions, penalty, see c. 111, § 1270.
Nuisance, burnt or dangerous building as, see c. 139, § 1.
6, State inspectors, removal or repair of dangerous buildings by, see§ 14 of this chapter.
Notes of Decisions
s
• In general I Under this section authorizing building in-
Abatement of nuisance 2 spector to notify owner of dangerous condition
1O- of building and that if owner continues such
J0, 1 neglect building inspector should cause it to be
made safe or taken down and that costs in-
t. In general curred should constitute a lien and that owner
Administrative determination of city build. should, for every day's continuance of such
ire t ing commissioner, after proper notice and op- neglect after being so notified, forfeit to city
• t s portunity to be heard, that building should be not less than$10 nor more than$50,the forfei-
39. destroyed as dangerous to public health and tore, or the liability to it, cannot be regarded
safety could not be attacked collaterally in either as an encumbrance within statutory
action against wrecking company which acted quitclaim covenant or as giving rise to a
on commissioners order. Di Maggio v.M stir breach of a statutory warranty. Silverblatt v.
y, Bldg.Wrecking Co.(1960) 166 N22d 213,340 Livadas(1960) 164 N.E.2d 875, 340 Mass. 474.
Mass. 686. 2. Abatement of nuisance
ire A wrecking company acting, in good faith This section relating to convening board
• under a building commissioners order, while where owner of unsafe structure refuses to
the it is in effect unattacked, is entitled to rely comply with requirements set forth in notice
ein upon order without making, at its peril, a de- from building inspector did not apply to action
termination whether the commissioners con- to abate nuisance. City of Woburn v. Busa
y a clusion was correct. Id. (1980) 403 N.E.2d 422, 9 Mass.App. 903.
;ht, § 9. Dangerous or abandoned structures removed or made safe by local
• n a inspector; lien for costs; penalty; use of structure
ed
rin If such report declares such structure to be dangerous or to be unused,
r n uninhabited or abandoned, and open to the weather, and if the owner, lessee
r or or in Mortgagee
sin possession continues such refusal or neglect, the local
inspector shall cause it to be made safe or taken down or to be made secure,
I of 141
•
•
•
•
143 § 9 PUBLIC SAFETY
and, if the public safety so requires, said local inspector may at once enter the
structure, the land on which it stands or the abutting land or buildings, with
such assistance as he may require, and secure or remove the same, and may
remove and evict, under the pertinent provisions of chapter two hundred
thirty-nine or otherwise, any tenant or occupant thereof, and may erect such
protection for the public by proper fence or otherwise as may be necessary,
and for this purpose may close a public highway. In the case of such
demolition, the local inspector shall cause such lot to be levelled to uniform
grade by a proper sanitary fill. The costs and charges incurred shall consti-
tute a lien upon the land upon which the structure is located and shall be
enforced in an action of contract, and such owner, lessee or mortgagee in
possession shall, for every day's continuance of such refusal or neglect after
being so notified, be punished by a fine of not less than one hundred dollars.
The provisions of the second paragraph of section three A of chapter one
hundred and thirty-nine, relative to liens for such debt and the collection of
• claims for such debt, shall apply to any debt referred to in this section, except
that the local inspector shall act hereunder in place of the mayor or board of
selectmen. During the time such order is in effect it shall be unlawful to use
or occupy such structure or any portion thereof for any purpose.
Amended by St.1945, c. 697, § 2; St.1949, c. 156, § 5; St.1949, c. 541, § 3; St.1957, c.
214, § 4; St.1959, c. 75; St.1970, c. 649, § 5; St.1972, c. 802, § 25; St.1979, c. 479.
• Historical and Statutory Notes
St.1878, c. 47, §§ 4, 5. St.1894, c. 481, § 17. R.L.1902, c. 104, § 7.
P.S.1882, c. 104, § 7. St.1899,c. 139, § 4. St.1913, c. 655, § 7.
St.1945, c. 697, § 2, an emergency act, ap- toted ", lessee or mortgagee in possession' for
proved July 24, 1945, rewrote the section, "or interested person".
• which prior thereto read: St.1957, c. 214, § 4, approved March 19,
"If such report declares such structure to be 1957, in the first sentence, inserted "or to be
dangerous, and if the owner, agent or person unused, uninhabited or abandoned, and open
to the weather" and "or to be made secure'.
interested continues such refusal or neglect,
the inspector of buildings shall cause it to be St.1959,c. 75,approved Feb. 24, 1959,in the
made safe or taken down, and the costs and third sentence, substituted "be punished by a
charges incurred shall constitute a lien upon fine of for"forfeit to the city or town in which
• the land upon which the building is located, the structure is located".
and shall be enforced within the time and in St.1970, c. 649, § 5, approved Aug. 11, 1970,
the manner provided for the collection of taxes in the third sentence, substituted "structure'
on land; and such owner or interested person for 'building" and "in an action of contract"
shall, for every days continuance of such re- for"within the time and in the manner provid.
fusal or neglect after being so notified, forfeit ed for the collection of taxes on land"; and
to the city or town in which the structure is inserted the fourth sentence.
located not less than ten nor more than fifty St.1972,c.802,§ 25,approved July 19, 1972,
and by§ 77 made effective Jan. 1, 1975,in the
dollars."
• first, third and fourth sentences, substituted
St.1949, c. 156, § 5, approved April 8, 1949, "local inspector' for "inspector of buildings'
inserted the second sentence. and, in the first sentence, substituted "local
St.1949, c. 541, § 3, approved July 13, 1949, inspector' for"inspector' following"said".
in the first sentence, substituted "lessee or St.1979,c.479,approved Aug.9, 1979, in the
mortgagee in possession" for"agent or person third sentence, substituted "one hundred" for
interested" and, in the second sentence, substi. "ten nor more than fifty".
• 142
•
•
�l
•
BUILDING INSPECTION, ETC. 143 § 10
Note t
Historical and Statutory Notes
this act,
f
St.1945, c. 697, § 2A, an emergency act, was Laws, inserted shall also apply by
case the acts of anofficerof-
approved July 24, 1945. a city or town are done for the purpose of ,�._
• j Section 2B of St.1945, c. 697, provides: making safe or taking down any dangerous
The provisions of section nine A of chapter structure under any special law or any ordi-
one hundred and forty-three of the General nance or by-law."
f
§ 10. Remedy of person ordered to remove a dangerous structure or
r make it safe
An owner, lessee or mortgagee in possession aggrieved by such order may i
o have the remedy prescribed by section two of chapter one hundred and
e thirty-nine", provided, that no provision of said section two shall be construed
so as to hinder, delay or prevent the local inspector acting and proceeding
.e under section nine; and provided, further, that this section shall not prevent
st the city or town from recovering the forfeiture provided in said section nine
• a from the date of the service of the original notice, unless the order is annulled
of by the jury.
oe Amended by St.1945, c. 697, § 3; St.1949, c. 541, § 4; St.1972, c. 802, § 26.
or
2d Historical and Statutory Notes �f
to St.1873,c. 261. St.1894,c.481,§§ 18 to 20. St.1913, c. 655, § 8. S
•
Of St.1878, c. 47, §§ 6 to 8. R.L.1902, c. 104, § 8.
ras P.S.1882,c. 104,§§ 8 to 10. St1899, c. 139, § 5.
in-
me an emergency act, a the service of the original notice, unless the
of St.1945, c. 697, § 3, g Y p- w
tr's proved July 24, 1945, rewrote the section, order is annulled by the jury."
an which prior thereto read: St.1949, c. 541, § 4, approved July 13, 1949,
hin "An owner or interested person aggrieved by substituted ", lessee or mortgagee in posses-
mt- such order may have the remedy prescribed by sion" for"or interested person".
• rve- section two of chapter one hundred and thirty- St.1972,c.802, § 26,approved July 19, 1972,
rds nine; but this section shall not prevent the city and by§ 77 made effective Jan. 1, 1975,in the t
ord or town from recovering the forfeiture provid- first proviso, substituted "local inspector' for i
in- ed in the preceding section from the date of "inspector".
3
Notes of Decisions
uc- In general 1 department of her new address, could have
been found by city before demolishing build.
ing by reasonable inquiry and whether in con.
ing I. in general sequence city failed to comply with its obli- ;
,tch City building commissioner's shortening pe- gation under statute to give notice to owner
riod in which house owner could appeal from before entering and razing house. Id.
ed, his order allowingbuildingdepartment to en- Procedures followed by city in declaring
rest ter and make safher house, which had been house in unsafe and dangerous condition and
or determined to have been in an unsafe and in razing it were not invalidated by citys fail.
dangerous condition, or remove it, so that ure to comply with this section providing for
• der house owners appeal had to be filed forthwith remedy of person ordered to remove danger-
,Uch did not invalidate his notice to house owner of ous structure or make it safe and c. 139, § 2
m-y; the order. Bryant v.City of Boston(1981)417 providing for appeal to the superior court in
ears N.E.2d 30, 11 Mass.App.450. common nuisance cases. Id.
In action to recover damages for allegedly Under this section and §§ 6, 8 to 9A of this
[tore unlawful demolition of house, it was for the chapter,authorizing building inspector to noti-
jury to determine whether property owner, fy owner of dangerous condition of building
who had moved without informing building and that if owner continues such neglect build-
145
T Y
•
•
,_s{h` tom' aycf u
\ � PUBLIC SAFET
? n-1
For more information on using WESTLAW to supplement your research, see a
WESTLAW Electronic Research Guide, which follows the Preface.
I :
I:
q
The section headings for Massachusetts General Laws Annotated
have been editorially supplied.
Cross References
Nuisance,
Atmosphere,pollution or contamination of,
we c. 111, § 142A.
• Barking dogs, we c. 140, §§ 137c, 157.
Beetles, suppression of, we c. 132, §§ 11, 12 et seq.
q;1 : Billboard or sign, unauthorized, we c. 93, § 30A.
Cemetery, community mausoleum or columbarium,abating or enjoining, we C. 114, § 43L
Dwelling places, requirements as to, see c. 111, § 127B.
Sewage disposal works, operation of, we c. 83, § 6.
Solid waste disposal facilities, assignment of places for, we c. 111, § 150A.
Spite fences, we c. 49, § 21.
Unlicensed structures in or along certain rivers, we c. 91, § 12.
Waterways, unauthorized structures in, we c. 91, § 23.
Precedence of certain prosecutions in superior court, see c. 212, § 24.
Library References
Comments.
Common nuisance, we M.P.S. vol. 5B,
Rodman, § 2262.
• United States Supreme Court
Burden of proof, obscenity cases brought as S.Ct. 172, 454 U.S. 90, 70 L.Fd.2d 262, rehear-
public nuisance abatement action, we Cooper ing denied 102 S.Ct. 1779, 456 U.S. 920, 72
v. Mitchell Bros.'Santa Ana Theater, 1981, 102 L.Ed.2d 181.
• BURNT OR DANGEROUS BUILDINGS
T:
§ 1. Orders adjudging buildings, structures or vacant land to be nuisanc-
es, notice, hearing and service of copy of order
'J, The aldermen or selectmen in any city or town may, after written notice to
• r the owner of a burnt, dilapidated or dangerous building or other structure, or
his authorized agent, or to the owner of a vacant parcel of land, and after a
hearing,s g, make and record an order adjudging it to be a nuisance to the
neighborhood, or dangerous, and prescribing its disposition, alteration or
t regulation. The city or town clerk shall deliver a copy of the order to an
1 : officer qualified to serve civil process, who shall forthwith serve an attested
copy thereof in the manner prescribed in section one hundred and twenty-
four of chapter one hundred and eleven, and make return to said clerk of his
-�4" doings thereon.
Amended by St.1966, c. 195; St.1970, c. 649, § 2; St.1984, c. 166, § 1.
416
•
j
•
i �
77,St.1855,
MMON NUISANCES 139 §2
• Historical and Statutory Notes
c. 469, §§ 1, 6. P.S.1882,c. 101, § 1. St.1919, c. 333, § 7.
G.S.1860, c. 87, § 1. R.L.1902, c. 101, § 1. St.1920, c. 5.
St.1966, c. 195, approved April 25, 1966, re- order adjudging it to be a nuisance to the
wrote the first sentence, which prior thereto neighborhood, or dangerous, and prescribing
read, "In a city or town in which the city its disposition, alteration or regulation."
council or the inhabitants of the town accept St.1970, c. 649, § 2, approved Aug. 11, 1970, _
this and the two following sections or have in the first sentence, inserted "or other struc-
accepted corresponding provisions of earlier ture".
laws, the aldermen or selectmen, after written
notice to the owner of a burnt, dilapidated or St.1984,c. 166,§ 1,approved July 5, 1984,in
dangerous building, or his authorized agent, the first sentence, inserted"or to the owner of
and after a hearing, may make and record an a vacant parcel of land,".
Cross References
L. Constables, service of civil process by, we c. 41, § 92.
Conveyance of real estate to evade nuisance provisions, penalty, we c. 111, § 1270.
Dangerous structure to be removed or repaired by local inspector, penalty, we c. 143, § 9.
Precedence of cases under this chapter, we c. 212, § 24.
Service of order of abatement, we c. 111, § 124.
Law Review Commentaries
Pollution as a nuisance. David A. Rice Public nuisances in New England. (1959)39
(1972) 34 ATLA L.J. 202. Boston U.L.Rev. No. 1, p. 95.
I
Library References
Municipal Corporations a 623(1), 628.
WESTLAW Topic No. 268.
CJ.S. Municipal Corporations §§ 177, 281.
r- WESTLAW Electronic Research
2
See WESTLAW Electronic Research Guide following the Preface.
Notes of Decisions
Demolition order 1 templated demolition. City of Worcester v.
Procedural noncompliance 2 Eisenbeiser (1979) 387 N.E.2d 1154, 7 Mass,
App. 345.
1. Demolition order 2. Procedural noncompliance
Demolition order issued by city for subject Procedures followed by city in declaring
1 building was properly annulled by trial court house in unsafe and dangerous condition and ((
1
because of failure by city to comply with pro- in razing it were not invalidated by city's fail-
' t cedural requirements for demolition of dilap- ure to comply with c. 143, § 10 providing for
idated and dangerous buildings in that demoli- remedy of person ordered to remove danger- `
tion notice failed to inform owner of building ous structure or make it safe and this section
that he could or should remove nuisance him- providing for appeal to the superior court in
self and did not specify any time period within common nuisance cases. Bryant v. City of
which he could remove nuisance prior to con- Boston(1981)417 N.E.2d 30, 11 Mass.App.450. li
I
• § 2. Appeal to superior court; trial by jury; costs
A person aggrieved by such order may appeal to the superior court for the
county where such building or other structure is situated, if, within three days
after the service of such attested copy upon him, he commences a civil action
417
I �
i.
•
139 §2 PUBLIC SAFETY CC
in such court. Trial by jury shall be had as in other civil causes. The jury m0
may affirm, annul or alter such order, and the court shall render judgment in j Eac,
conformity with said verdict, which shall take effect as an original order. If
i the order is affirmed, the plaintiff shall pay the costs; if it is annulled, he §
shall recover from the town his damages, if any, and costs; and if it is altered,
the court may render such judgment as to costs as justice shall require. All
proceedings hereunder authorized by section ten of chapter one hundred and an
forty-three, after issue is joined therein, shall be in order for trial and shall on
have precedence over any case of a different nature pending in said court and ch
then in order for trial.
Amended by St.1945, c. 697, § 5; St.1970, c. 649, § 3; St.1973, c. 1114, § 8. St
•
Historical and Statutory Notes Gc
%i St.1855, c. 469, §§ 3 to 5. P.S.1882, c. 101, §§ 2 to 4. St.1920, c. 5.
G.S.1860, c. 87, §§ 2 to 4. R.L.1902, c. 101, §§ 2 to 4.
St.1873, c. 261. St1919, c. 333, § 7. Co
-
i
e!i St.1945, C. 697, § 5, an emergency act, ap- the first sentence, substituted "commences a
}? proved July 24, 1945, added the fifth sentence. civil action in such court"for"presents to such 7
St.1970, c. 649, § 3, approved Aug. 11, 1970, court a petition stating his grievance and the Bo
in the first sentence, inserted "or other strut- order of the board", in the second sentence,
ture". deleted "After such notice to the board as the
court shall order,'preceding"trial",and in the
St.1973,c. 1114,§ 8,approved Nov.30, 1973, fourth sentence, substituted "plaintiff' for "pe. '
and by § 351 made effective July 1, 1974, in titioner". -
Cross References
I
• q i`' Building inspector hindered from proceeding under section nine of chapter 143, because of this
section, see c. 143, § 10. De
Conveyance of real estate to evade nuisance provisions, penalty, see c. 111, § 1270.
Precedence of certain prosecutions nuisance, we c. 212, § 24.
Remedy under section available to owner, lessee or mortgagee in possession aggrieved by 1.
"i
building i I g 'ins
pector's order to remove or repair structure, we c. 143, § 10.
bL
Code of Massachusetts Regulations be
State building code commission, emergency measures, see 780 CMR 124.1. cc
01
j' Law Review Commentaries
i Appeals to superior court. (1958) 43 Mass.
rI L.Q. No. 1, p. 21.
E p
• �, Notes of Decisions b
t Annulment 1 that he could or should remove nuisance him- p
A Review 2 self and did not specify any time period within r
which he could remove nuisance prior to con- s
templated demolition. City of Worcester v. o
1. Annulment Eimnbeiwr (1979) 387 N.E.2d 1154, 7 Mass.
�_- Demolition order issued by city for subject App. 345. r
building was properly annulled by trial court s
because of failure by city to comply with pro- 2. Review
cedural requirements for demolition of dilap- Where defendant, in a prosecution for main-
' idated and dangerous buildings in that demoli. taining a liquor nuisance, after conviction by a
tion notice failed to inform owner of building the trial justice,appeals to the superior court,a 1:
418
; . I
I •
XETY COMMON NUISANCES 139 §3A
a.
to jury motion to dismiss the complaint, based on the trial court,should not be granted. Com.v.
tent in facts not appearing in the record of the case in Fletcher (1892) 31 N.E. 687, 157 Mass. 14.
er. If
ed, he § 3. Abatement or removal of nuisance by aldermen or selectmen
Itered, The aldermen or selectmen shall have the same power to abate and remove
e. All any such nuisance as is given to the board of health of a town under sections
A and one hundred and twenty-three to one hundred and twenty-five, inclusive, of
I shall chapter one hundred and eleven.
rt and
Historical and Statutory Notes
St.1855, c. 469, § 2. P.S.1882, c. 101, § 5.
G.S.1860, c. 87, § 5. R.L.1902, c. 101, § 5.
Cross References
Conveyance of real estate to evade nuisance provisions, penalty, we c. 111, § 1270.
Law Review Commentaries
:nces a
to such Public nuisances in New England. (1959)39
and the Boston U.L.Rev. No. 1, p. 95.
ntence,
as the
lin the Library References
or"pe- Municipal Corporations e-623(1).
WESTLAW Topic No. 268.
C.I.S. Municipal Corporations§ 281.
of this Notes of Decisions
Demolition order 1 idated and dangerous buildings in that demoli-
tion notice failed to inform owner of building
that he could or should remove nuisance him-
led by 1. Demolltlon order self and did not specify any time period within
Demolition order issued by city for subject which he could remove nuisance prior to con-
building was properly annulled by trial court templated demolition. City of Worcester v.
because of failure by city to comply with pro- Eiwnbeiwr (1979) 387 N.E.2d 1154, 7 Mass.
cedural requirements for demolition of dilap- App. 345. -
§ 3A. Demolition or removal of building or structure or securing of J
vacant land; owner's liability
If the owner or his authorized agent fails to comply with an order issued
pursuant to section three and the city or town demolishes or removes any
burnt, dangerous or dilapidated building or structure or secures any vacant
him-
parcel of land from a trespass, a claim for the expense of such demolition or
within removal, including the cost of leveling the lot to uniform grade by a proper
D con- sanitary fill, or securing such vacant parcel shall constitute a debt due the city
mass . or town upon the completion of demolition, removal, or securing and the j
rendering of an account therefor to the owner or his authorized agent, and
shall be recoverable from such owner in an action of contract. i
main- Any such debt, together with interest thereon at the rate of six per cent per
on by annum from the date such debt becomes due, shall constitute a lien on the
-urt,a land upon which the structure is or was located if a statement of claim, signed
419
i �
•
139 §3A
PUBLIC SAFETY
by the mayor or the board of selectmen, setting forth the amount claimed
without interest is filed, within ninety days after the debt becomes due, with
4, the register of deeds for record or registration, as the case may be, in the
county or in the district, if the county is divided into districts, where the land
lies. Such lien shall take effect upon the filing of the statement aforesaid and
!d 1! shall continue for two years from the first day of October next following the
II; k date of such filing. Such lien may be dissolved by filing with the register of
! . deeds for record or registration, as the case may be, in the county or in the
district, if the county is divided into districts, where the land lies, a certificate
from the collector of the city or town that the debt for which such lien
I; attached, together with interest and costs thereon, has been paid or legally
abated. Within a reasonable time after making the claim the mayor or the
t board of selectmen shall certify to the assessors the list of claims upon the
land therein who shall forthwith commit such claims with their warrant to
A i the collector of taxes thereof, and he shall forthwith send notice in accord-
ance, except as to the date of notice, with section three of chapter sixty, to the
1 person who was liable to assessment therefor on the preceding January the
first under the provisions of chapter fifty-nine as the owner of each
parcel
assessed, and any demand for payment of such claim shall be madeupon
such person. Such collector shall have the same powers and be subject to the
same duties with respect to such claim as in the case of the annual taxes upon
real estate, and the provisions of law relative to the collection of such annual
taxes, the sale or takingof land for the nonpayment thereof, and the redemp-
tion of land so sold or taken shall apply to such claim.
j Added by St.1970, c. 649, § 4. Amended by St. . , .c 166 § 2
• I � 1
Historical and Statutory Notes
{I St.1970, c. 649, § 4, was approved Aug. 11, vacant parcel of land from a trespass" for
1970• "from said property"p }", inserted "or securing �
St.1984,c. 166,§ 2,approved July 5, 1984,in such vacant parcel" and substituted "demoli-
the first paragraph,substituted"or secures an tion, removal, or securing' for "demolition or
Y removal".
i
Cross References
I{ I Applicability of this section to collection of costs incurred for demolition by local inspector,see a
143, § 9.
Conveyance of real estate to evade nuisance provisions, penalty, we c. 111, § 1270.
Removal of dangerous or abandoned oned st
ructures, we c. 143, § 9. c
Myd r.
f
Code of Massachusetts Regulations
.r, State building code commission, emergency measures, we 780 CMR 124.1.
r.- r1,
Library References §
Municipal Corporations X623(4).
WFSTLAW Topic No. 268.
C.J.S. Municipal corporations§ 281. a,
xi
3 �
p
e
420 ,,r n
j:
i..
Commonwealth of Massachusetts
Board of Building Regulations and Standards
Manufactured Buildings Program
THIRD PARTY INSPECTION AGENCY CERTIFICATION
BULK LABELS
This Section to be completed by Third Party Inspection Agency-Pease print or type- UNITS MAY NOT BE
SHIPPED UNTIL THIS CERTIFICATION IS COMPLETED and COMPONENTS ARE LABELED
SECTION 1-MANUFACTURER INFORMATION (5\Mfg\mfgthirdpartycert bulklabels2005-July,2005)
Manufacturer Name Customized Structures Inc. MC# 032
0
Address 272 River Rd Claremont,NH 03743
Telephone 603-543-5300 Fax 1 603-543-5396
E Mail Address bobjolinson@customizedstructuresinc.com
SECTION 2-BUILDING INFORMATION BBRS\DPS I.D. # 1607-05
Street Name&Number 1 Cousins St
City Salem State MA Zip
Use Group R4 Construction Type 5B
In signing this form below, I hereby certify that the units identified on this form have been inspected and
are constructed in accordance with the following codes, as applicable.
Massachusetts State Building Code (780 X Massachusetts State Electrical X
CMR) Code(527 CMR 12)
Massachusetts State Plumbing and Fuel X Massachusetts Architectural Access X
Gas Code (248 CMR) Board Regulations (521 CMR)
Mfg. Plant Inspector's Name (Print Name) Third Party Inspector( rint Name)
Robert r TPIA#: 02
016ria ecto Signature Thir Party nsp Signature
3
qy Date: [ Z-� Date: 14_ I
SE ON 3-,sUILDER/DEALER/CERTIFIED INSTALLER INFORMATION
Builder/Dealer: Templar Homes
Address: 174 R Lynn St Peabody,MA
Licensed Construction Supervisor: Joel Marron License Number: 19737
Certified Installer: Bud Morin or Kevin Whitney-Crew Chiefs Exp. Date: 18/18/07
SECTION 4-LABEL INFORMATION(Indicate number of boxes and number of labels required)
Number of Units 6 Label Numbers Issued: 100019-100026
Manufacturer's Serial Number: 044012
Manufacturer's Model Designation: Duplex
The original form shall be mailed to the BBRS/ Department of Public Safety
167 Lyman Street/ P.O.Box 1063 Westborough,MA 01581 kimberly.spencer@state.ma.us